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THE AMERICAN COLONIES
IN THE
SEVENTEENTH CENTURY
THE AMERICAN COLONIES
IN THE
SEVENTEENTH CENTURY
BY
HERBERT L. OSGOOD, Ph.D.
PB0FBB80B OF HI8T0BT IN COLUIIBIA nKIYBBSITT
VOLUME in
IMPERIAL CONTROL. BEGINNINGS OF THE SYSTEM OF ROYAL PROVINCES
t
. \ ^ x^-
*«« • * w • '
«
THE MACMILLAN COMPANY
LONDON: MACMILLAN ft CO., Ltd.
1907
AU righU rearmed
* *«
CJOPTBIGHT, 1907,
THE MACMILLAN COMPANY.
Set up and dectiotyped. Published April, 1907.
178.197
• •
• •
• ■
• • •
■
« •
«
J. B. OoflhlDg A Co. — Berwick A Bmlth Go. Norwood, Mass.. U.B Jl
PREFACE
With the publication of the present volume the pledge made three years ago is redeemed, and the treatment of the seventeenth century as contemplated in the plan of this work is' completed. The volume will be found to contain both more and less than a history of British colonial administra- tion in America during the period under review. It con- tains more than this, because an effort has been made to trace the internal development of Virginia during a large part of the century, and special attention has been given to domestic relations in the other royal provinces as in suc- cession they appeared. The history of the royal provinces is more than a history of imperial administration, though the two are closely interwoven ; and in tracing it the author should never forget that he is still standing upon American soil. His outlook is broader than it was when he was consid- ering the chartered colonies, but it is not radically different.
The book contains less than a history of British colonial administration, because the island colonies, with Newfound- land and Nova Scotia, are for the most part left out of account. In the opinion of the British merchant and offi- cial the island colonies and the northernmost dominions appeared to be the most important. Their affairs received proportionally greater attention than did those of the inter- mediate continental colonies ; their trade was more valuable to Great Britain and came far less directly into competition with British industry than did the trade of the northern colonies. From this comparative estimate proceeded a course of development which had not a little to do with the revolt of the continental colonies and their indepen- dence at the end. But though this group of colonies was less thoroughly ^^administered" than were the islands, yet their experience amply illustrates all the phases of the
yi PREFACE
British system of control. In the present volume an at- tempt has for the first time been made to trace the history of this control as a distinct and separate feature of coloniza- tion. Attention has been directed to the organs through which it was exercised, to the objects and ideals which were pursued, and to the obstacles which prevented their attain- ment. The early stage of development only has been traced ; the heart of the subject has been reached. If the inquiry can be pursued through the period of the French wars, and the processes of control as applied to the royal provinces be revealed, a body of precedent will be collected and a point of view attained, in the light of which the events of the colonial revolt will appear in their proper relief.
For valuable suggestions in reference to the commercial policy of England, I am indebted to Mr. George Louis Beer. The preparation of the manuscript for the press has been greatly facilitated by the assistance of my wife.
Columbia Univxrsitt, Jannaxy, 1907.
CONTENTS
PART FOURTH
IMFBBIAL CONTROL. BEGINNINGS OF THE 8T8TEM
OF BOYAL PBOVINCES
CHAPTER I
ThS NaTUBB AlTD OSOANS OP IMPERIAL COXTBOL
PAAB
Analogy between chartered colonies and privileged commercial com- panies 8
Significance of imperial control 4
In this case it does not consist in the goyemment of alien peoples . 4 It does consist in the remoteness of the colonies from the centre of
government 6
Distinction between the realm and the dominions 7
There was no distinction in law 8
But there was a great difference in fact 9
Lack of administrative unityf combined with an unlimited right of
control, gave rise to a novel political structure ... 10
Neither royal officials nor colonists understood its character . . 11
Organs of imperial control 12
Early instances of acts of parliament which mentioned the dominions 12
Early efforts to bring colonial affairs before parliament ... 13 Sense in which English common law and statutes were in force in
the colonies 14
The executive was the only branch of the English government which was continuously concerned with the colonies. Reason for
this 16
Officials and boards that were concerned with executive control . 15' Functions of the privy council in early times — correspondence,
hearings, orders 16
Routine connected with issue of royal charters .... 19
Colonial agents and royal commissions 21
In the history of imperial control the central fact is the transition from
the system of chartered colonies to that of royal provinces . 23
Needs and motives which led to this ...... 23
vu
VIU CONTENTS
CHAPTER n
ThB DnSOLUTION OP THB VlBODriA COMPAHT OF LOHDOIT
TAQM
The importance of the reddenoe of the coiporation in qneetions of this
kind 26
The assistance which, through diplomacy, the king had early given to
the Virginia enterprise 26
The atUtade of the crown toward the company when under the Sandys- Southampton management 26
The king inclines to interfere in the election of treasurer, 1620 and
1622 26
The early a^tude of crown and parliament toward the production
of tobacco 28
Proclamations of 1619, and rates of duty 29
Controyersy between the company and Abraham Jacob . 80
Efforts of goyemment to suppress the production of tobacco in the
realm 81
Monopoly of importation granted to Sir Thomas Roe and others for
1620 32
The Virginia company plans to market its tobacco in the Nether- lands 32
This course forbidden by the priyy council. An early, though
partial, assertion of the policy of the staple .... 33 The proposed contract of the Virginia and Somen islands companies with the king for the ezclusiye importation of tobacco for seyen
years, 1622 34
Negotiations and proposals ........ 34
Terms of the contract 36
Plans and estimates for administration under the contract . • 86
Debates on the subject in Virginia company 86
The prosecution of ex-goyemor Argall reacts upon the question 36
Samuel Wrote attacks the Earl of Southampton and his associates . 37 Indications of eztrayagance in Sandys*s management ... 38 Debates oyer salaries of those who were to haye charge of the sale
of tobacco under the contract 39
Dissensions reported to the king 41
Hearing before the priyy council 41
Sandys defends the company 42
A royal commission of inquiry appointed at request of Alderman
Johnson, 1623 43
Exaggerated accounts by Captain Nathaniel Butler of suffering in
Virginia after the Indian massacre of 1622 .... 44 Defence, by Sandys and his associates, of the policy of the com- pany against the attacks of the Warwick-Johnson faction • 46 The king supports the latter and orders the company to decide whether or not it would surrender its charter and accept a new one '47
CONTENTS IX
FAOI
The company votes not to surrender 48
<itio toarranto proceedings ordered 49
The royal commissioners attempt to collect evidence against the
company in Virginia 49
The dissolution of the Virginia company nnder process of quo vxxrratUo
before King's Bench, 16^ 61
CHAPTER m Rblatiohs bbtwbbm thb English Gotbrhmbxt ahd BLlssaohusbtts
FBIOB TO THB BBGIlfNIMG OP THB GbBAT CiTIL WaB
Removal of Massachusetts company into New England a challenge to
English government 64
Policy of early Stuarts was ostensibly one of strong executive control
over colonies. Proclamation of 1626 66
Events which occasioned interference of English government with
Massachusetts 66
Interests of Gorges family prejudiced by Massachusetts grant . 66
Complaints by Morton and Ratclifl 67
Case of Sir Christopher Gardiner 67
Petition by complainants in 1682 69
Hearing and rejection of petition by privy council .... 60
Archbishop Laud joins Gorges and Morton in opposition ... 61
Rapid settlement of New England by Puritans alarms Laud . . 61
Administration of oath of allegiance to emigrants, February, 1684 . 62 Creation of board of commissioners for trade and plantations, April,
1684. Composition and powers of this board 62
Massachusetts charter ordered to be produced 63
Edward Winslow sent as agent to England 64
His hearings and imprisonment 66
Surrender of charter of New England council, 1686 .... 66
Gorges to be sent to New England as governor general ... 66
Massachusetts prepares to resist Gorges 67
Failure of Gorges^ plan to cross the Atlantic 68
Suit under writ of quo warranto against Massachusetts charter . . 69
The Massachusetts company not dissolved 70
CHAPTER IV
BBOnCNINOS OP ROTAL GOVBBNMBNT IN ViBOINIA
Intimacy of early relations between Virginia and England • Boyal commission of 1624 to regulate Virginia afEairs .
Early correspondence between Virginia and the crown .
Agency of Sir George Yeardley, 1626 . . . .
Virginia receives less direct aid than under the company
72 78 76 76 78
X CONTENTS
PAOB
Internal deyelopment of Virginia . . . . . .79
Land grants and quit rents 70
Extension of settlement Origin of counties and parishes . 80
Failure to develop towns 82
Judicial system of Virginia 83
The governor and council. Their support and the general charac- ter of royal appointments 84
Form of early commissions to the goyemors 86
The grand assembly. Its control, especially oyer appropriations
and expenditures 87
Belations between the governor, council, and assembly illustrated by
the admhiistration of John Harvey, 1628-1689 ... 91
Reflex influence of the grant of Maryland on Virginia ... 91
Early efforts of Claiborne to hold Kent island as Virginia territory 92
Personal unpopularity of Harvey in Virginia 96
Dependent position in which he stood toward the council . . 98 Defeat of Claiborne in 1635 provokes an uprising against Harvey in
Virginia 98
Harvey sent back to England by the council 100
Harvey restored to his province by king and privy council . . 101
Continued complaints against Harvey and Secretary Kemp . 101
Hie commissions and instructions of Wyatt (1639) and Berkeley (1641) 102
CHAPTER V
Colonial Policy dubino thb IirrBBRBONnK
General character of the period in England 105
Parliament the immediate source of authority, executive as well as
legislative 106
Creation by parliament of a new board of commissioners for planta- tions, November, 1643 107
Its powers as compared with those of the previous board . .107
The friendly relations between it and New England . . 107 Virginia and some of the island colonies inclined toward an hostile
attitude 108
New England affairs during the Civil War 109
Puritan emigration checked 109
New England ministers decline to take part in Westminster As- sembly 109
Roger Williams as agent in England, 1644 109
The Grortonists seek redress in England 110
Edward Winslow sent to defend Massachusetts, 1647 . . .111 The status quo about Narragansett Bay maintained . . .112
Hie struggle in Maryland during the Civil War 112
Outbreak of Civil War occasions renewed activity on the part of
enemies of the Calverts 112
First visit of Richard Ingle, 1644 113
CONTENTS Zl
PAOB
Second yisit of Ingle. He and Claiborne unite and seize control of
the goyemment, 1646 118
Baltimore saves his interests, both in England and in the province,
by appointing William Stone, a Protestant, as governor, 1648 114
Changes in organization of English executive after execation of the king 114 Creation of cooncil of state and large development of committee
system 114
Changes incident to establishment of Protectorate 115
Enforcement of subndssion to parliament in the provinces of Barba-
does, Antigua, the Bermudas, and Virginia .... 116
Preliminary inquiries by admiralty committee .... 117
Act of 1660, prohibiting trade with those colonies .... 118 Appointment, under authority of this act, of a commission to
enforce submission in those colonies 119
Reduction of the island colonies 119
Personnel and work of the commission in Virginia . . .119
Opposition of Berkeley quieted . . . .- . .121
Terms of settlement vrith assembly and with governor and council,
1662 122
Choice of governor and other officials intrusted to the assembly 124
Peaceful continuance of this system in Virginia until the Restoration 125 Bennett and Claiborne suspend proprietary government in Mary- land and require express submission to Commonwealth, March,
1662 126
Hearing in England, favorable to Baltimore. Cromwell virites to
Bennett 128
Baltimore orders Stone to fully retetablish his government, July,
1664 129
Bennett, Claiborne, and the Puritans overthrow Stone's govern- ment. Assembly at Patuxent, October, 1664 .... 130
Stone resumes government, early in 1666 131
Battle on the Severn. Defeat of proprietary party . . 131 Though no decision was reached in England, the decline of the Protectorate insured the i>ermanent re^stablishment of Lord
Baltimore's authority 132
Attitude of the Commonwealth and Protectorate toward colonization in
general 133
Outburst of national energy 133
Revival of hatred toward Spain 134
War with the Dutch. Expedition of Sedgwick .... 134 Reasons for peaceful relations with France prevail . 135 Expeditions against Hispaniola and conquest of Jamaica . 136 Cromwell's plan to people Jamaica by colonists from New England 137 These events bring the island colonies into prominence 139 Continued naval oi>erations in the West Indies and vigorous impe- rial control over these colonies 140
Plan of Thomas Povey and others for the creation of a council for
America and for other reforms 141
XU CONTENTS
CHAPTER VI Thb Bbbtoration and the Rotal CoMMiBsioir or 1664
PA«B
The event of first importance after the Restoration was the conquest d
New Netherland 143
The event of second importance waa the settlement of the Carolinas . 144 Next in importance to the acquisition of those territories was the devel- opment of the policy by which they were to be governed . 144 Continued activity of Thomaa Povey and his associates after the
Restoration 146
Joseph Williamson and Samuel Maverick 146
All culminated in the activities of the group of officials and states- men (mainly Tory) who surrounded the Duke of York . 147
Early committees on colonial affairs 147
Establishment of council for trade and council for foreign plantations,
November and December, 1660 149
Membership and powers of these bodies 160
Business which early came before the plantation board . 162
The circular letter of spring of 1661 163
Restoration of normal provincial government in Virginia .163
Afbirs in New England and the encroachments of the Dutch demand
immediate attention 164
The attempt to adjust relations in New England 166
The plantation board receives petitions from the enemies of Massa- chusetts 167
Statements of Edward Godfrey, of the younger Gorges, of Captain Breedon, of the proprietors of the iron works at Lynn, of the
Quakers 167
169 161 161 162 163 163 164
Correspondence of Samuel Maverick with Clarendon John Leverett informs Massachusetts of attack upon her She sends her first address to the king .... Her instructions to the agents — policy of passive resistance
Slight concessions in New England
Royal letter of February, 1661, to Massachusetts
Massachusetts again defines its powers as a body politic
Leverett throws up his agency, and, after a sharp report on the
petitions from the plantation board, the privy council takes the
matter into its own hands 166
Massachusetts sends Rradstreet and Norton aa agents . 166
They bring back the king's letter of 1662. Its requirements . . 167
Action of general court thereon 168
Efforts of Mason and Gorges to assert their claims, both in Eng- land and New England 168
Home government fidls, owing to lack of officials of its own in
New England 171
Resort had to a royal commission, 1664. Its doings in New England . 171 Personnel of Uie commission ........ 171
CONTENTS XIU
TAQU
Instractions to the commiasion 172
Its attempt to settle the western boundary of Connecticat • . 176
Early experiences in Massachusetts 177
Visit to the southern colonies of New England .... 178 Betum to Boston and struggle with the general court and magis- trates over its claim to hear appeals 183
Visit of commissioners to northern New England .... 186
Their failure. Their return and report 189
Further action delayed by fall of Clarendon ministry • • • 101
CHAPTER VII
Ths Acts of Tradb
The principles of mercantilism as applied to the commercial relations
of the British empire 103
Policy affecting the tobacco industry after Virginia became a royal
province 197
Prohibition of tobacco culture within the realm continued . . 198 Attitude of government toward Spanish tobacco .... 198 Effort to improve colonial product and to limit the amount pro- duced 199
The production of other staples in Virginia encouraged . . . 200 Experiments with government monopolies of importation, 1624-
1639. Uniformly opposed by colonists 201
The acts of 1650 and 1651 affecting colonial trade 204
Both were aimed at carrying trade of the Dutch .... 205
The act of 1651 not vigorously enforced 205
The acts of trade of Charles II 206
The principle of the navigation act (1660) — encouragement of
shipbuilding 207
The .policy of the staple, for the benefit of merchants, applied in
the acts of 1660 and 1663 208
Relation of the conquest of New Netherland to this policy . .212
Scotland excluded from colonial trade 212
Institution of system of fleets and convoys during the Dutch wars
of the Restoration 214
Restriction of intercolonial trade in enumerated commodities by
act of 1673 216
Royal customs officials appointed for the colonies under the act of
1673 216
Administration under the acts of trade illustrated by the experiences
of customs officials 217
Quarrel between Giles Bland and Governor Berkeley in the royal
province of Virginia 217
Complaints of illegal trade in New England, 1675 .... 218 The interpretation put by the merchants on the act of 1673 is dis- allowed by the English government 220
XIV CONTENTS
PAOB
Further complaints followed by circular letter and resolve to ad- minister to the governors the oaths required by acts of trade . 222
Light thrown on illicit trade relations with New England by the
Culpepper rebellion of 1677 in North Carolina .... 223
Controversy between the proprietors of Maryland and royal
customs officials, 1681-1686 226
Assassination of Rousby, the royal collector .... 227
The appointment of Edward Randolph as royal customs officer in
Massachusetts, 1670 228
The opposition with which he met during the first period of his
residence there, 1670-1681 228
Randolph's second period of residence (close of 1681 to 1683), with
commission under the great seal and as deputy auditor . .231
He meets with an additional obstacle in the form of a newly created
naval office 232
He is unable to enforce the acts in New Hampshire . . 284
The acts of trade nullified in New England 235
Creation of office of surveyor general of customs for the North
American colonies, 1686 236
Customs administration under Dudley and Andros • . . 237
General summary of results 230
CHAPTER Vm
ViBOIMIA DURIWO THE RESTORATION. BaOON'S RBBBLLION
Yiiginia as the ** old dominion *' 242
Character of Governor Berkeley and of the official group which he led . 243
Extension of settlement. Social classes 240
The assembly in its relations with the official oligarchy . . 247
Attempts of Charles II to change Virginia into a proprietary province . 248
Grant of the Northern neck in 1640 to St. Albans and associates . 248 Project revived in 1672, to grant all Virginia for thirty-one years to
Arlington and Culpeper 251
This defeated by opposition of colonists 261
Plan for issue of a royal charter to Virginia 252
Problem of coast defence in Virginia 254
Futile efforts to fortify Point Comfort 254
Virginia magistrates and the merchants disagree .... 254
Province suffers from Dutch attacks in 1667 and 1672 . . . 255
Charges that money had been wasted begin to provoke revolt . 258
The Indian War of 1676 and 1676 258
Outbreak of war. Capture of Susquehanna fort . . .261
Ravaging of the Northern neck 262
The Long Assembly declares war, but takes no effective measures . 262
Inhabitants of upper counties gather for defence .... 263
Appearance of Nathaniel Bacon 263
He defeats Snsquehannas near Roanoke river • . • . 266
Berkeley proclaims Bacon a rebel ....... 266
CONTENTS XV
FAOB
Bacon's rebellion . . ^ . . 2d6
Dissolution of the old, and election of a new, assembly . • . 266
Bacon, a member, arrested, but released by governor . . 267
Reform legislation of assembly of June, 1076 268
Assembly makes Bacon general of forces against Indians . . 268
Bacon coerces Berkeley into granting him a commission . . 270 After close of session Berkeley again proclaims Bacon a rebel and
tries to raise lower parts of province against him . . . 271
Bacon organizes resistance at Middle Plantation .... 272
Possibility of this becoming a revolt against the king . . 276
Berkeley retires to Accomac and Bacon captures Jamestown . . 276
Death of Bacon and collapse of revolt 277
Reprisals of Berkeley 278
CHAPTER IX
Thb Rotal Commission of 1677. Viboikia at thb Closb
OF Stuabt Rboimb
Changes in plantation boards in England after 1667. Work of those
boards 280
Reception of news of Bacon's rebellion 283
The royal commission of 1677 283
Personnel and powers of the commission 288
Condition of Virginia on its arrival, February, 1677 . . . 286 Commissioners quarrel with Berkeley, but he soon returns to Eng- land 286
Treaty of May, 1677, with the Indians 288
Inquest by counties respecting causes of the uprising . . . 290
Local statements of grievances 291
Close of work of commission and its report 293
Administration of Lord Culpeper, 1680-1683 296
The instructions to the new governor 296
His first sojourn in Virginia and return to England . . . 298
The tobacco-cutting insurrection of 1682 300
Second visit of Culpeper to Virginia and close of his administration 301
Administration of Lord Howard of Effingham, 1684-1689 . . .302
Division of legislature into two houses becomes complete . . 302
Independent attitude of the burgesses 302
Controversies with the governor during session of 1684 . . . 302
Controversies during sessions of 1686 and 1686 .... 303
The assembly of 1688 806
Hearing on appeal of Ludwell in England ..... 307
Lord Howard retires from active duties as governor • • . 308
XVI CONTENTS
CHAPTER X Ths Dissolution of thb Massachusbtts Compakt
PAOB
Contiiiaed petitions of Mason and Gorges after fall of Clarendon min- istry S09
Complaints respecting violations of acts of trade . . . ^. . 310
Edward Randolph sent as special agent to Massachnsetts ■ >.*7 ^ . .811
His reception by governor and magistrates 812
His return and report 316
Stoughton and Bolkely sent as agents by Massachusetts . . .317
Their instructions 317
Randolph appears as active opponent of Massachusetts in England 318
Questions in controversy referred to judges and privy council . 819 Opinion of Chief Justices Rainsford and North on the charter and
on claims of Mason and Gorges 310
Opinion of Sir William Jones, attorney general .... 820
Opinion of attorney and solicitor general on laws of Massachusetts 321
The agents plead general lack of instructions 822
Massachusetts buys out the Gorges heirs 323
Plantation board reports in favor of qtto warranto, 1678 . . 324
Return of the agents to Massachusetts 324
Continued negotiations, ending in dissolution of company . . . 825
Moderate party wins a victory in Massachusetts .... 326
The colony conforms to the will of king in some things . . . 827
But it meets commands to send other agents with prolonged delay 327
Continued attacks on colony by Randolph ..... 328
Agency of Dudley and Richards, 1682 328
They were instructed not to consent to a change of system — religion
and appeals 329
Quo voarranto proceedings instituted, 1683 ..... 331
Randolph unable to serve writ in time 332
Process by scire facias substituted, and charter cancelled, 1684 . 333
Points in indictment and decree 833
CHAPTER XI
BsonnriKOS of Rotal GovBBNMBirr in Nbw Hampshirb
General conditions in New Hampshire towns 886
Commission of 1679 to President Cutt and council .... 387 The assembly of 1680. Government in accord with New England
traditions 338
Arrival of Mason and Richard Chamberlain 389
Efforts of Chamberlain to secure recognition aa secretary . . 339
The assembly of 1681 342
Mason seriously obstructed in his efforts to assert his proprietary
claims 342
Representations on this subject to England and appointment of
Edward Cranfield aa governor 345
CONTENTS XVU
PAOB
The administration of Edward Cnmfield, 1682-1086 .... 846
Character and powers of Cianfleld 846
His first impression of New Hampshire fayorable .... 847 His change of attitude . . . . . . • .848
He dissolves his first assembly 840
Abortive uprising at Hampton. Edward GrOve .... 849
Cranfield dissolves his second assembly, 1684 860
Antocratio government with a packed council and judiciary . . 851 Various aspects of this government, especially its efforto to enforce
Mason^s claims 852
Attack on the clergy hi person of Rev. Joshua Moody . . . 354
Attempt at prerogative taxation 855
Expulsion of Thurton, the tax collector 856
Grievances of the colony presented in England by Weare • . . 856
Hearing before lords of trade 867
A qualified decision against Cranfield 867
Cranfield returns home on permanent leave of absence • • • 367
CHAPTER Xn Nbw Yobk as ▲ RoTAL Provincb. Ths Admivistbation or
GOVBBNOR DOMOAM
The new commission and instructions to Dongan as royal governor . 868
Dongan urges the restoration to New York of all the territory which
was comprised in New Netherland 861
Dongan describes revenue system of New York 863
His quarrel with Collector Santen 864
Relations of Dongan with the French and Indians .... 867 His correspondence with Denonville over alleged French and Eng- lish encroachments . 368
Their confiicting claims to the Iroquois country .... 369
Charges respecting deserters and sale of liquor .... 872 Expedition of Rooseboom from Albany, 1686-1686 . . .378
French attack on the Senecas, 1687 874
The treaty of neutrality at Whitehall, 1686 376
Palmer sent as agent to England 876
Dongan ordered to protect the Five Nations and exclude the French 876
CHAPTER Xm
Thb Dominion of New England
The nature and difficulty of the task which was undertaken by the
Stuarts in reorganizing New England 878
The unfitness of men like Randolph to administer New England
aftairs 879
The English government oonsiders the boundaries of the new
province 381
<f^
XVin CONTENTS
PA6S
Qaestion of the appointment of Colonel Percy Eirke as goyemor . 882
The administration of Joseph Dudley as president, with a council, 1686 383
Powers given to the president and council 884
Character and position of Dudley . . • 385
Inauguration of the new government 386
Conciliatory attitude of president and councilloia .... 386
Inauguration of Anglican worship in Boston 390
Randolph dissatisfied with the new government because it did not
go far or fast enough 391
Administration of Governor Andros, 1686-1689. The Dominion of
New England 393
His commission and instructions 398
His appointment jneant the introduction of the New York system of
government, without an elected assembly, into New England . 893 Issue of writs of quo loarrarUo against Rhode Island and Con- necticut 395
/Submission of Rhode Island 397
\$?onnecticut holds out for a time, but finally submits . . . 397
Beginning of government by Andros and his council . . . 400
The establishment of courts 401
Question of raising a revenue, and the light which it throws on
Andros*s methods of legislation 402
Resistance to the payment of taxes, and its suppression . . 402
Drafting of a code of laws considered, but abandoned . . 405 The inquiry into land titles and town grants, with a view to their
renewal and to the levy of quit rents 406
Agitation upon this important subject 408
Town meetings pirohiblted, except for election of oiBceis . . 409
Increase Mather departs for England 410
Andros receives government of New York and the Jerseys . . 410 Difficulty of consolidating so large and diverse a territory . .411 Conflicts with French and Indiims begin on eastern frontier. An- dros goes thither 412
Rumors are circulated that Andros intends to betray New England
to the French and Indians 412
Preparations for revolt 413
CHAPTER XIV
Trb RavoLUTioN nr Nbw Englahd. Thb Provincial Chaktbk
OF Massachusetts
Arrival in New England of news of the English Revolution . . . 416 Attitude of Massachusetts toward Andros and of Andros toward
James II 416
Uprising in Boston, week of April 18, 1689 417
First day — seizure of leading officials and of the fort, and issue of
manifesto by insurgent . , 418
CONTENTS
PAOB
Second day — surrender of the royal frigate and of the castle . 421
Third day — temporary government under a council of safety set
up ; a convention called 421
Sessions of convention, May 9 and 22. The old charter government
revived 422
Conduct of Massachusetts imitated by the other corporate colonies 423
The agency of Increase Mather in England 424
The services of Mather as connected with the history of the colonial
agency in general 424
Mather at the court of James n 426
Mather prevents the government of William III continuing Andros
in office 428
But he and his colleagues failed to convince it that the Massachu- setts charter should be restored 428
Rei>orts from New England and royal order that Andros and his
associates be sent to England 490
Unfavorable reports as to the insurgent government in Massachu- setts 480
Renewed activity of Randolph 431
Charges against Andros not sustained in England .... 436
Failure to secure the restoration of the old charter • . . 436
The issue of the provincial charter of Massachusetts .... 436
Negotiations of winter and spring of 1690-1601. King decides in
favor of an appointed governor 437
Draft of charter by Attorney General Treby and changes therehi . 438
Details of charter, with extent of province, settled . 438
General characteristics of the new, as compared with the old, charter . 440
CHAPTER XV Thb Rjbvolt of Lbislbr nr Nbw Yobk. An Assbmblt pbb-
MANBIVTLT BSTABLI8HBD IN THAT PbOVINOB
Fears of Catholic intrigue and French invasion in New York • . 444
Dissatisfaction with the government of that province .... 447 Personal feeling between Jacob Leisler and the Bayards and Van
CortlandU 449
Joint meetings of councillors, city officials, and officers of the train
bands to provide for defence, April and May, 1689 . . . 460
The mutiny of the train bands (May 30-31) and its results . . . 452
Weakness of Nicholson and council shown 454
Leisler and the other militia captains retain possession of the fort . 454
They will surrender it only to authority from William of Orange . 456
Nicholson returns to England to report 456
The councillors and city officials pushed one side and the southern
I>arts of the province fall under the control of the insurgents . 467
New York under the Leisler regime, 1689^1691 457
The convention of June 26 : A committee of safety chosen ; Leisler
made commander of the fort ; aid sought from other colonies . 458
GONTBNTS
PAOB
Vigoroas measures of defence adopted 468
The southern counties brought under military government . . 469
Albany refuses to submit to Leisler 460
Milbome, Leisler^s lieutenant, sent thither to reduce it . . . 461
His negotiations ¥rith the convention 461
Milbome returns to New York baffled 463
Unfavorable news from England. Henry Sloughter appointed gov- ernor 464
More stringent measures adopted by Leisler 466
The destruction of Schenectady by French and Indians (February,
1690) forces Albany to submit to his rule .... 467
Assembly of April, 1690 468
War measures of summer of 1690 469
Arrival of Major Ingoldesby with troops, January, 1691 . . 470
Ingoldesby refused admission to the fort 471
Growing opposition to Leisler 472
Encounter between the forces of Leisler and Ingoldesby, March 17 472
Arrival of Governor Sloughter, March 19, 1691 .... 472
Downfall of the Leisler party 472
Leisler delays surrender of fort 472
He and his chief supporters are arrested 473
Trial and condemnation of Leisler and his councillors . . 473 Sloughter yields to pressure and orders the execution of Leisler and
Milbome 476
The excuses and defence urged by the condemned .... 476
CHAFTEB XVI
COLLAPSB or PrOPRISTABT GoVBBNMBNT in MlBTLAKD
The accuracy with which political movements in England were reflected
in Maryland 477
Friction between the lower house of assembly and the proprietor
between 1676 and 1689 478
The question of the number of representatives from each county . 478
Controversy over the right of John Ck>ode to his seat . . . 480
Question of the confirmation of the laws 481
Sessions of 1682 and 1683 ; bills for regulating elections and for
establishment of towns 483
Session of 1684 ; summary of relations during the past decade . 484 Disposition of the government on the return of Charles Calvert to
England 486
The uprising of the Associators hi 1689 487
Strong attachment of the executive to the Stuarts shown by cele- bration of bulh of the heir of James 11, 1688 .... 487 Jure divino theory of kingship and executive expounded by Presi- dent Joseph 487
Controversy over the oath of fidelity 487
CONTENTS XXI
TAQM
Because of death of his messenger, Lord Baltimore fails to transmit
news of the Revolation in England to the colony . . . 400 Panic caused by rumors of a plot on the part of the Catholics and
Indians to massacre the Protestants, March, 1680 . . 401
These reports without foundation 408
But Catholic rule in Maryland was doomed 404
Uprising of Coode and the Associators, July, 1680 .... 406 Occupation of St. Mary^s and Mattapony by the insurgents . . 405 Many Protestants, especially those of Anne Arundel county, do
not support the Associators 407
Coode explains and defends his revolt ...*... 408 The assembly of the Associators, August, 1680 ; temporary disposi- tion of tlie government 400
Murder of John Payne, collector of customs, by relatives of the
proprietor 600
Action taken by the English government 601
Baltimore commanded to send duplicate orders for proclaiming
William and Mary 601
Baltimore asks for hearing and recommends the appointment of
Henry Coursey as governor 602
English authorities further prejudiced against him by reports from
Coode in reference to murder of Payne 602
BaltimoVe permitted to send an agent to Maryland to collect his
revenue 503
Besolve of the crown to assume the government of Maryland indi- cated by the opinion of Chief Justice Holt, June, 1600 . . 503 Hearing before the council, November 20, 1600 ; Baltimore, Coode,
and Cheseldyne present 504
Lionel Copley commissioned as royal governor, June, 1601 . 606
Trial and punishment of the murderer of Payne, and establishment
of royal government in Maryland . . . . 506
CONCLUSION
The influence on the colonies of the great events of the century in
England 607
The seventeenth century was emphatically the period of chartered
colonies 500
The feudal aspects of this form of colony were perpetuated by the
remoteness of America from England 610
Lack of system in English administration tended to a similar end . 511
Tendencies toward independence specially emphasized in New England 512
Resulting institutional differences between the realm and the dominions 512
Parliament refrains from legislation affecting the colonies, except
in the sphere of commerce 513
As a result, the colonies are left almost wholly under executive
control , 514
Instances of executive control . . . . . . . .515
CONTENTS
PAOB
Bapid development of executive and jndicial control after the Restoration 616 This largely the conseqaence of passage of acts of trade . 616
Royal officials needed for this purpose in the colonies . 616
Appointment of royal commissions, agents, customs officers resorted
to in effort to supply this need 617
The process culminated in a plan to substitute royal provinces for
chartered colonies on a large scale 617
This was accompanied by the abolition of assemblies and the union
of colonies into governor generalships 617
This process checked by the Revolution in England and consequent
uprisings in the colonies 619
But an improved balance of powers was secured through the devel- opment of a system of royal provinces with assemblies . . 620
PART FOURTH
IMPERIAL CONTROL. BEGINNINGS OF THE SYSTEM OF ROYAL PROVINCES
*■ »
CHAPTER I
#
THE NATT7BB AND OBGANS OF IMPERIAL CONTBOL
In the earlier volumes of this work the results which were CHAP, achieved mainly through the operation of private initiative ^ ^• in the development of British- American institutions have been traced. That motive, when followed out in action, resulted in the founding of a considerable number of colo- nies, each with its peculiar grouping of settlers and its char- acteristic organization ; all, as a rule, jealous of the privileges which, by charter or in other ways, they had secured. The part thus played in America by the chartered colonies corre- sponds to the regime of the privileged commercial companies in the development of English trade. Those were in part joint-stock and in part regulated companies. The companies which shared in American colonization were organized on the joint-stock plan. But the system under which trade was carried on with the chartered colonies in general might be roughly compared with that which was enforced by the English regelated companies. The important fact, however, in this connection is that, when the British government came to enforce such principles of control as it thought conduced to the general interest, it had to deal in both cases — that of the trading companies and that of the American colonies — with bodies possessing chartered powers. In this form mainly both English trade and English colonization were organized throughout the seventeenth century.^
In the history of this phase of early American institutions the most significant event was the removal of the governing body of the Massachusetts company into their colony.^ That
1 Cunningham, Qrowth of English Industry and Commerce, Modem Times, 214 et seq,
^ For suggestive remarks on a somewhat analogous development on the part of the Merchant Adventurers of England, see Lingelbach, in Transactions of the Royal Hist. Soc., New Series, XVI. r>l et seq.
8
• • •
4 • : : IMPERIAL CONTBOL
PART gave riscJ.toa type of colony which embodied most clearly the spirit, *o£ separation and independence toward which privai€^.* Initiative naturally led. Outside the group of cor^'Oi:ate colonies, whose settlement was either directly or iA<lH^*<^^l7 the result of the course which Massachusetts pur- :sTied, the same tendency existed, but it was prevented by social and institutional restraints from gaining such com- /plete sway.
In the present volume attention will be called to the influ- ence which was directly exerted over the colonies, and over the proprietors who cooperated in founding them, by the British government ; that is, by the sovereign power under whose protection they all came into existence. Under this aspect of the subject the emphasis will be laid on British and general imperial interests, which operated as a restraint upon the tendencies in the colonies toward local indepen- dence. In the history of this phase of our colonial develop- ment the most significant event, corresponding in importance to the settlement of New England, was the attempted con- solidation of the colonies between 1680 and 1690. We shall be concerned with the events that led gradually to that con- summation and with some of the after results which perma- nently affected colonial life. A study of this nature, when properly balanced by a regard to the interests of the colonies as special jurisdictions, will form a proper introduction to the varied struggles and achievements of the eighteenth century.
Historians have hitherto neglected this side of the subject, or have treated it as foreign and inimical to the colonies. It should, however, be remembered that the control of the Brit- ish government over the North American colonies was not imposed as the result of conquest, but was developed as an incident of their settlement. It was exercised over English subjects or over those who were ready to declare their inten- tion of becoming such. Even the Dutch and Swedes of New Netherland very soon took the oath of allegiance and became reconciled to the establishment of English authority among them. To the colonists such authority was certainly not foreign, though as a result of their removal to a distant
THE NATI7BE AND OBGANS OF IMPEBIAL CONTBOL 5
continent, it became in a sense external. It was a part and CHAP, a condition of their existence. When properly exercised, this authority did not involve a meddlesome interference, but was as necessary and inevitable as were the tendencies toward isolation and independence in the colonies them- selves. Had the colonies not been subject to control in the lines along which sovereign power is accustomed to act, they would not have been dependencies, but something other than that.
From the remoteness of the colonies and the strange envi- ronment which surrounded their settlers arose all that was peculiar and exceptional in their relations with the British government. And this in fact was sufficient to account for much. Under favorable circumstances it required four months to send a despatch from London to America and procure a return ; often the time required was much longer. This was a natural obstacle to the processes of government which could not be removed and which conditions during the seventeenth and eighteenth centuries did comparatively little to modify. The ordinary proprietor might remove into his province and administer its affairs on the spot. But this the king, whether as proprietor or sovereign, could not do. His residence was always in £urope. From England as a centre, royal or imperial control, whether it was exer- cised over chartered colonies or royal provinces, must be administered. In other words, the development of imperial control over the British- American colonies affords an illus- tration of the problems affecting government when it pro- ceeds from a remote centre. This is its main characteristic and suggests the chief distinction between it and the govern- ment of the realm, as well as the self government of the colo- nies. It was this condition which gave rise to the principle, that the laws of England in general should be enforced in the colonies so far as the circumstances of the latter would permit — a qualification which never obtained in the realm.
In modern times dependencies are usually situated in re- gions far distant from the countries which have established them, and the characteristic just referred to attaches to
6 IMPEBIAL COKTBOL
PABT every system of colonial administration. But in the case of many colonial systems, especially in the modern era, it is modified by the other problem, that of the government of alien and inferior races. Questions of this nature become vital and controlling when natives far exceed the European settlers in strength and numbers. Relations with an in- ferior race formed an element in North American coloniza- tion. But, so far especially as the home government was concerned, this feature of the problem occupied a secondary place. Until past the middle of the colonial period Indian relations were a matter with which the colonists concerned themselves much more than did the British government. Its attention was chiefly centred upon the government of Euro- peans— subjects of Great Britain — when removed to a distant continent and subjected to the influences arising from new surroundings, conditions which tended to attract them away from the mother country. In its last analysis the history of British colonial administration is essentially an exposition of the consequences in the development of institu- tions of this great natural condition. This explains the failure of policies and institutions to reach a complete and well-rounded development. It also explains much that was peculiarly slow or hesitating in administrative methods ; the delays, the indifference, the ignorance with which royal officials were often chargeable ; the autocratic and unsympa- thetic spirit which appeared in much that they said and did ; while, on the other hand, the particularism of the colonists sprang from the same source. In other words, it gave rise to the distinction between the realm and the dominions, a phrase which sums up in convenient form the legal and con- stitutional results of the process.
By the realm was usually meant England, Wales, and Ber- wick on Tweed. It was the territory whose counties and boroughs were virtually or really represented in parliament, and over which the acts of parliament, whatever their pur- pose and content, carried full authority. The ordinance power of the English executive, when confined within its proper sphere, was equally authoritative in all parts of this territory, as were the decisions of the central courts. The
THS NATUBE AKD OBGANS OF IMPERIAL CONTROL 7
English system of local government also existed throughout CHAP. this region. ^'
When the colonies were founded, did they become a part of the realm ? Did they become a part of it at any period subsequent to their settlement ? Was the realm subject to continuous expansion, or did it remain the same, while the colonies lay outside of it? Were they the beginning of a new realm, which in the end might have added a third crown to the royal dignities of the Stuart family? In other words, when the colonies were founded or as they de- veloped, did the English constitution, 'spontaneously and in complete form, extend to them ? Did they become fully sub- ject to the authority of parliament, to that of the king and of the English courts ? Did all the laws which guarantied the rights of the crown, and those also which were intended to secure the liberty of the subject, extend to the colonies ? Were the colonists bound by the English system of private law, by its criminal law, by the law of procedure in the Eng- lish courts ? Did English law extend to the colonies propria vigore^ or were the colonists at liberty to select what they chose or what was adapted to their condition? Was the sovereignty of England over them immediate and complete, or was the relation between the two one of compact ? Finally, were the colonies a part of a great consolidated state, or of a federal empire? These were the issues, conceived in the broadest terms, to which the founding of the colonies gave rise, and their origin was due to the peculiar conditions which had their root in colonial isolation.
As in the Saxon period of English history the organs of the central government were imperfect and a satisfactory connection between them and the localities had not been established, so in its relations with the colonies that well- balanced institutional development was never reached which had come into existence throughout the realm long before the close of the middle age. On the other hand, as we have seen, the coloiiies developed a system of local or self govern- ment which was far more complete than anything which existed within the realm. In the eye of the law, however, the corporate colonies ranked only with English municipal
8 IMPEBIAL CONTROL
[? corporations, while the provinces were the equivalent of J English counties. But in reality they had become political structures of a higher rank than their English protot3rpes, and the colonists were fully aware of the fact. The English counties and boroughs had no assemblies which would rank in importance or authority with those which existed in all the colonies. The proof that this is true has been given in abundant detail in the previous volumes.
On the other hand, the activity of the central government was much less fully exerted in the colonies than it was over the municipalities and counties of the realm. This again was due primarily to the remoteness of the colonies from England. It is true that in the seventeenth century the vol- ume of their business was not large, but it is quite likely that it would have equalled the business of any corre- sponding number of English counties and municipalities, if Middlesex and London were excepted. But the fact of importance is that, as compared with the English localities, only a small part of the business of the colonies ever came before the English government or was passed in review by its officials. The organs of the English government — its privy council, its treasury and admiralty, the courts of law, and even the parliament — existed for the colonies as truly as they did for the realm ; but the chief part of colonial business was transacted in America, and the volume of such busi- ness which passed through English offices was very small as compared with the total business of the realm. This was the consequence, in the domain of administration, of the remoteness of the colonies from England ; and that fact was accompanied with a corresponding degree of indifference toward colonial affairs on the part of British officials and the British public, and toward British affairs on the part of the colonists. Colonial affairs did not receive the direct and intensive treatment which was given to those of the realm.
Just here appears the root of the distinction between the realm and the dominions in that growing political structure which was to be known as the British empire. It was more a distinction of fact than of law, of practice than of principle. But from long-continued practice or custom arise new prin-
THB KATUBE AND ORGANS OF IMPERIAL CONTROL 9
ciples, which in course of time find expression in law. Con- CHAP.
duct begets a law which, though it be unwritten, may be ,^ ^
more powerful than any code or body of statutes. This was a fact in colonial development which officials were prone to forget, but which they were destined to learn to their cost before the end of the eighteenth century.
British lawyers and officials at home and those who rep- resented the home government in the colonies held that, in law if not in fact, the authority of Great Britain within the dominions was complete. To their minds the relations between the British government and the individual colonists were immediate, and might be made so throughout the entire circle of civil and political relations. They held that the colonies were in principle as completely subject to parliament, as much exposed to the changes which are gradually wrought by the tightening or the loosening of the reins of power, as were the local jurisdictions within England itself. In this they were technically correct and were quite in harmony with the principles of English law. The logical consequence of their reasoning, however, was, to lower the rank of the colonies as political structures to the level of Eng- lish counties and municipalities. According to this view, if private rights were guarantied, the internal structure of the colonies might be modified by act of parliament, or, under certain circumstances, by executive and judicial action. Without the consent of the inhabitants, the colonies might be subdivided or combined in any way that suited imperial interests. The colonial assemblies even, and the systems of public law to which they gave rise, were held by many to exist by sufferance, and that in the interest of public policy — a very elastic expression — they might be seriously modified or even swept away. If this were true, as doubtless it was in strict point of law, the colonies were virtually a part of the realm, and at the same time, the continuance of what the colonists most valued in their institutions was not adequately guarantied ; the realm, in other words, was ever expanding so as to keep pace with the advance of the American frontier.
But opposed to this view was a most important array of facts. These were the remoteness of the colonies from
10 IMPBBIAL CONTROL
PART England, already referred to, and all the administrative and political consequences which resulted from that physical condition. These facts, when they worked themselves out historically, gave rise to a series of relations between the dominions and the sovereign power in Great Britain which was very much less inclusive and complete than that which existed between the central government and the counties, cities, and boroughs of the realm. Corresponding to this, there developed in the minds of the colonists a higher ap- preciation of the value of their local institutions, as expressions and guaranties of their liberties, than was felt by Englishmen for their county and municipal systems. The counterpart of this was the sensitiveness which the colonist always felt and expressed when from any quarter his local independence seemed in danger of infringement. By the colonist exec- utive action or legislation at Westminster which was likely to affect his local interests was viewed with much greater jealousy than similar action affecting an English county or borough could have aroused among its inhabitants. To him, because of the remote centre from which it proceeded, such action not only seemed autocratic, but it was so. Even the action of an imperial parliament in which the colonist was not in any real sense represented might be the most autocratic and oppressive of all. The tendency of all this was to keep the dominions very distinct from the realm, and to give rise, not to a consolidated empire, but to a structure, in spirit though not in law, much more analogous to a federation. This tendency did not completely triumph, but it furnishes the key-note to the history of the period, so far as it was determined by purely American conditions.
The fact that these conditions were giving rise in the seven- teenth and eighteenth centuries to a novel political structure is to us becoming apparent; but to the men of those times the nature of that structure was by no means clear. The supreme legislature never satisfactorily defined the relation between the home government and the colonies, or settled the questions which were, or might be, at issue. It simply legislated for the colonies on certain subjects by mentioning the dominions in its statutes, and refrained from legislating on a much
THE KATUBE AND OBGANS OF IMPERIAL CONTBOL 11
greater variety of other subjects. There was no judicial tri- CHAP, bunal in the British system, except possibly the house of Lords, which was competent to pronounce on such questions. The desirability or necessity of such action does not seem to have occurred to the minds of British statesmen, and in fact the system of the elastic constitution, to which alone they were accustomed, almost precluded the possibility of such a sug- gestion. Respecting the subject there was little positive law. The political consciousness of the colonists, on the other hand, was scarcely more awake, except that they were usually on the alert to prevent any encroachment on their accus- tomed liberties. Of constructive thought bearing on the nature of the British imperial constitution they were almost wholly barren. They were accustomed to fall back on the charters, but the provisions in them which appeared to guaranty to the recipients the rights and liberties of English- men referred to private rights and were extremely indefinite at that. Charters, moreover, might be modified or annulled, either by act of parliament or by combined judicial and ex- ecutive action. If done by act of parliament, it was likely to be undertaken in the interest of public policy and thus to be a sweeping measure. Experience was also to prove that similar wide-reaching results could be accomplished in the seventeenth century by the combined action of the courts and the king in council. Before the courts the colonists might be held responsible for acts which under transatlantic con- ditions they had assumed or found it necessary to perform, but which in the case of an English county or municipality would be clearly illegal or in excess of powers. When char- ters were once annulled, and the royal province was insti- tuted, with government under a royal commission and instruc- tions, then the colonists came, so to speak, to close quarters with the crown, and the struggle continued over a whole series of claims and privileges and rights. The colonists were then forced to rely wholly on the common birthright of Englishmen, the guaranties which were supposed to have been secured by Magna Carta, the common law, and the great constitutional statutes of the middle age and the period of the Stuarts. But these also were often indefinite in their
12 IMPBBIAL CONTROL
FART terms, made no mention of the dominions, and were of doubt- ful applicability to the conditions which existed within them.
Such failure as this to understand and define existing relations left the way open for controversies and misunder- standings between the colonists and the home government or its officials. These controversies form much of the staple of colonial history on its imperial side until, just before the revolt of 1776, they culminated in a general scrutiny of mutual rights and obligations which, so far as immediate imperial reform was concerned, had a purely negative result.
The organs of the British government which were called into play in the administration of imperial control over the colonies were, as has already been suggested, the parliament, the courts of law, and the various executive offices and boards which surrounded the king and constituted what was tech- nically known as the crown. The function of the parliament was, in the foim of general statutes, to prescribe the law by which relations with the colonies were to be regulated. As an incident of legislation the houses might receive petitions and hear testimony. They might also call upon officials or executive boards to furnish them with information; they might seek this through their own committees. But the work of the parliament was regulative rather than administrative.
At the beg^inning of colonization it was possible that par- liament might have legislated extensively for the colonies. Several statutes of Elizabeth's reign which provided for the establishment of the English Church and for the security of the crown against the papacy and the Jesuits mentioned the dominions. One or two statutes which were passed for a similar purpose at the time of the Gunpowder Plot, con- tained the same reference. It was frequently the desire of patentees that their charters should be confirmed by parlia- ment, though it was not often in early times that this favor was secured. On December 19, 1585, a bill from the Commons for the confirmation of the patent to Sir Walter Raleigh was read in the Lords ; but there is no reference to its passage and no such statute appears among the acts of that parliament.^
1 Lords Journals, IL 76a. The journal of the Commons is lacking for the years 1580 to 1603.
THE NATUBB AND OBGAKS OF IMPEBIAL COKTBOL 18
It was no uncommon thing in the early days for the parliament CHAP, to call for patents and to inquire into the use that had been , ^
made of the privileges which they conveyed. This was done on a large scale by the Commons between 1621 and 1624 in connection with the attack on monopolies. In April, 1621, a bill was debated at length in the Commons and passed, for free fishing on the American coast from Newfoundland to Vir- ginia. This brought up the affairs both of the Virginia company and the New England Council and led to repeated liearings on the subject of the monopolistic features of the New England patent ; Sir Edwin Sandys was a most active defender of the policy of freedom of trade and fishing. The bill failed utterly of consideration by the Lords and so did not become law. Three years later Gorges' patent was again attacked in the Commons and found a place in its list of grievances. But on this occasion no act was passed which directly affected the colonies.^
In 1614 the Virginia company petitioned the Commons for an act for the better plantation of their colony, and a hearing was held, at which Richard Martyn appeared as counsel for the company, but with rather humiliating con- sequences to himself. No legislation came of this.' Ref- erence will elsewhere be made to the effort to bring the affairs of the Virginia company before the Commons just before the recall of its charter in 1624. Occasionally after Virginia became a royal province its planters or merchants who traded thither petitioned the Commons, but no action of importance followed.' A variety of subjects, to which parliament at times devoted much attention, led far afield and might naturally have involved much legislation affect- ing the colonies. These were trade, patents, the fisheries, the navy, the customs revenue, war, and defence. During
1 CommoDS Joomals, L 218, 223,' 678, 691, 640, 668, 688 ; Lords Journals, III. 840, 461, 469, 487, 626, 823, 827. The famous act of 1624 against mo- nopolies was the result of these debates, but its effects were limited to trade and production within the realm. The bill for liberty of fishing repeat- edly passed the Ck)mmon8 and was as often introduced into the Lords, but failed to make progress there. A bill of this kind appeared as late as 1628.
* Commons Journals, I. 481, 487 ; Brown, First Republic, 216, 216.
* Commons Journals, IL 64, 64, 818.
14 IMPERIAL CONTBOL
PART the Interregnum, as will be seen, parliament became the ^^' ^ centre of the political organism, and all activity, whether legislative or executive, proceeded from it. But notwith- standing the possibilities which were implied in all this, parliament actually confined her colonial legislation, both before and after the English Revolution, to the subject of trade, passing only an occasional act on other subjects, as on defence during the last intercolonial war.
It is, however, true that both English statute and com- mon law were in a general sense operative in all the colonies. The charters forbade the passage of laws which were repug- nant to those of England. The colonists always claimed the benefit of the great English statutes which made for liberty. In many cases they incorporated the substance of them in their own legislation. As Englishmen they were ever under the influence of the legal and administrative traditions of England. Their institutions and laws were based on those of England; its laws were appropriated, both consciously and unconsciously, as the process of develop- ment continued. But this, especially during the sevent<eenth century, was the work of the colonists themselves, and was not effected through pressure from the home government. In the process of natural selection which went on, the colo- nists took what suited their purposes and modified it as the conditions under which they lived seemed to require.^
As to the judge-made law of England, except so far as it had become a part of the common law, it was largely without influence on the colonies in the seventeenth century. In fact, when the colonies were founded, the judges had not estab- lished their independence of the executive. In the colonial courts of the time the best judges were imperfectly ac- quainted with English precedents. In many cases they were totally ignorant respecting them. The dearth of trained lawyers and the lack of a system of appeals made anything more than a rough approximation to English practice an
^ The subject of the introduction of English law into the colonies, which is also the history of the origin of American law, is one which demands investi- gation. Until the work shall be done by some competent hand, one is forced to deal in generalities.
THB NATUBB AND OBGAKS 07 IMPERIAL CONTROL 15
impossibility. The system of appeals from colonial courts CHAP, was not yet developed, though the admiralty occasionally heard cases which involved vessels engaged in colonial trade.
The executive therefore was the only department of the English government which from the first and throughout the period was directly concerned with the colonies. This arose from the fact that the title to land in the plantations, origi- nating in discovery made under royal license, vested in the crown. The crown issued all charters under which settle- ments were made. This gave rise to a feudal or pseudo-feudal relation between the king and the grantees. In the case of the provinces this was reproduced by the grants which the proprietors made to the settlers. From this relation, broad- ened by the fact of sovereignty, proceeded such rights of government as the king possessed over the colonies. These were exercised continuously, and constituted the system of royal control.
The organs of government through which executive control over the colonies was exercised were, besides the sovereign himself, the secretaries of state, the privy council, the lord high treasurer or commissioners of the treasury, the lord high admiral or commissioners of the admiralty, the law ofiicers of the crown and — to be determined by events — either the archbishop of Canterbury or the bishop of London. Committees or commissions subordinate to the privy coun- cil, like the commissioners of trade and plantations, and subordinate to the treasury board, like the commissioners of the customs, were subsequently added; but they made no fundamental change. They were mainly Iboards of inquiry and report, charged with special duties in detail, and when they took positive action it was by virtue of some permanent or special order from the king, privy council, or treasury board. A variety of special commissions were also appro- priated from time to time, each for a particular purpose. These are especially prominent in the history of Virginia. Behind all these bodies stood parliament, inactive as yet, but with unlimited possibilities attaching to it as a regula- tive power.
During the period prior to 1642 the privy council, or
16 IMPERIAL CONTBOL
PART more properly the king in council, was the body which ^' was chiefly concerned in the administration, both of the affairs of the realm and the dominions. In relation to the dependencies the functions of the council were threefold : 1. it was the chief among the central administrative boards which were concerned with colonial affairs ; 2. it acted as a high court of appeal in the trial of cases which were brought from the courts of the colonies ; 8. by virtue of a power which it assumed after the royal provinces began to develop, it gave or withheld its assent to acts of the legislatures in nearly all the colonies. It thus became a part of their legislative machinery.
But in the early period, of which we are now speaking, the executive function was almost the only one relating to the colonies which the privy council discharged. In perform- ing these duties it was concerned with all the dealings be- tween the king and the proprietors of colonies, whether corporations or mdividuals, who were resident in England. From them it received petitions, letters, and reports. In response to all these it originated action in the form of letters, warrants, and orders. Letters from the privy council were or might be written concerning all subjects which came before it. The warrants which it issued were orders to do particular things; as, for example, to draw a patent. They belonged chiefly to the sphere of pure administrative routine.
In the process of investigation hearings were frequently held before the whole council or before a committee. Abun- dant examples of these forms of action will appear as we pro- ceed, and hundreds more may be culled from the colonial papers. Captain Bargrave petitions, in April, 1622, against the management of Virginia affairs by Sir Thomas Smith. In September, 1630, Aldersey, Cradock, and others of the Massachusetts company petitioned for license for one year to transport provisions to Massachusetts, and that the proc- lamation of 1622 against disorderly trade be renewed. Both requests were granted. In January, 1634, the attorney gen- eral writes that the king may give laws to Newfoundland and submits some which might be temporarily enforced. Sir Ferdinando Gorges, probably in June, 1638, in a letter to the
THE NATUBB AND ORGANS OF IMPBRIAL CONTROL 17
council requests that the existing restrictions on emigration CHAP, to the colonies may be so interpreted as to exclude only ^' schismatics. In October, 1618, a justice of the peace of Som- ersetshire reports that Owen Evans was causing much fear by impressing maidens, under the pretended authority of a com- mission, to go to Virgfinia. The Discourse of the Old Company^ a memorial of great importance, explaining and defending the policy of the Sandys-Southampton party in the Virginia company, was addressed to the privy council. In February, 1637, the master, wardens, and assistants of Trinity House report on Newfoundland affairs. In May, 1639, the officers of the customs at Yarmouth certify that, since their last, no passengers or goods had been shipped from that port to Massachusetts bay.
Orders were the most common form used by the council for the expression of its will, and they carried with them the highest binding force. Within the sphere of the executive they hold a position of importance corresponding to that of the statute within the province of the legislature. They were, or might be, issued concerning all matters which came within the cognizance of the council. During the controversy between the crown and the Virginia company, and while the government of Virginia was being taken into the hands of the king, orders were issued concerning a variety of subjects connected with Virginia affairs. In 1630 orders were issued relative to a dispute in which Captain Kirke and his associ- ates, merchant adventurers to Canada, and M. de Caen were involved over certain beaver skins to which both laid claim. In 1631 an order was issued referring a controversy, between the same merchant adventurers and certain parties who were charged with trading to Canada as interlopers, to Sergeant Berkeley and two others for further investigation. In De- cember, 1632, a committee was ordered to be appointed to inquire and report how patents for plantations in New Eng- land had been granted, concerning the truth of petitions from planters there, and about a relation in writing which Sir Christopher Gardiner had submitted. In 1685 a contro- versy between Edward Kingswell and Samuel Vassall over
the transportation of colonists who were intended for Caro- voL. in — o
18 IMPEBIAL COKTBOL
PART lina, occasioned the issue of orders. Orders were issued in ^^* , 1640 to the lord treasurer and the officers of the customs for the clearing of several vessels which were bound for New England with passengers and provisions.^
In the history which is to follow reference will need to be made with increasing frequency to the doings of the privy council. It was the board to which all general colonial busi- ness came and at which it centred. Questions of right and policy were there discussed and settled. The dealings of the council, however, were chiefly with the royal provinces. With those its relations were manifold and continuous. The king in council was the highest depositary of executive power for provinces of that class. During the period of which we are speaking the colonial business transacted by the privy council related chiefly to Virginia. Only, occasionally do references appear to the chartered colonies and their concerns. They moved within their own distinct circles, and it required some event of exceptional importance, which affected the king's in- terest, to bring them before the privy council. This reveals with sufficient clearness the character of the system of char- tered colonies, and the significance, from the standpoint of im- perial policy, of the transition to a system of royal provinces.
Of the other boards and officials whose share in colonial administration can at a later time be pretty clearly differen- tiated, prior to the Restoration only occasional traces appear. The secretaries of state had not then become clearly sepa- rated from the council. They were still subordinate to it and in their dealings with the colonies their work appears as a part of its own. The lord treasurer bore a prominent part in the transactions with the Virginia and Somers islands companies affecting the importation of to- bacco ; but for a long time after the dissolution of the first- named company, the treasury concerned itself little with colonial affairs, except so far as they were affected by the collection in England of the duties on colonial products.
It thus appears that during the early decades the king
^ The acts above referred to, and many more in addition, appear in Colonial Papers, 1574-1660. The Calendars of State Papers, Colonial, will be cited in this form.
THE NATUBE AND ORGANS OF IMPERIAL CONTROL 19
alone, or the king in council, did nearly all of the colonial CHAP.
business. It was small in amount, and was not thought to ^^ ^
demand the degree of expert attention which was afterward devoted to it. Of the executive functions which were per- formed at the beginning the granting of a royal charter was among the most important. It also best illustrates the co- operation of the different officers connected with the Eng- lish executive in a matter of business which affected the colonies.
When a petition was presented by private adventurers, or a would-be proprietor, for a royal patent, the proposal was referred to the attorney general and solicitor general for an opinion on the legal aspects of the application. At any time before the creation of a special committee, council, or board of trade, the bearings of the proposition on the political and commercial interests of England must needs have been con- sidered by the council, either in full session or with the aid of a special committee. When a decision had been reached that the grant would probably be both legal and expedient, the law officers were ordered, by a warrant under the sign manual, to draft the patent. When this was done, it was reported back to the council under the name of the king's bill, with a docket attached which was intended for the king's own eye, and which therefore briefly summarized the main provisions or object of the grant. If the terms of the grant were approved, a transcript of it under the king's privy signet was sent to the office of the lord privy seal. There the formal parts of the charter were added, and the privy seal was attached. Thence it was sent to the office of the lord chancellor, where, if no further objection appeared, the great seal was affixed. This completed the grant and made the charter a letter patent.^ The object of the process thus outlined was to protect the rights and interests of the king, to prevent either himself or his officials from being deceived and from granting franchises which they had no
^ Palgrave, In Second Report of Depaty Keeper of the. Public Records; Charles Deane, Forms used in Issuing Letters Patent, in Proceedings of Mass. Hist. Soc. 1869-1S70, IQS; Anson, Law and Custom of the Consti- tution, IL 45.
20 IMPERIAL CONTBOL
PART right to grant, or those the grant of which would be in- , ' J expedient.
It is true that, throughout the seventeenth and eighteenth centuries, a very large part of colonial business was done by the men who at the same time were administering the affairs of the realm. It was done too in the offices where the business of the realm was transacted, and occupied its modest place in the general stream of affairs. Especially was this true when the privy council took immediate charge of colonial administration. But on two or three occasions a tendency appears to assign colonial business to a council specially erected for the purpose, to a body which was given large powers of initiative and one upon which no express obligation of reporting to the king in council was imposed. It would be unsafe to attribute too great independence to any of these bodies, but one interesting example is the king's council for Virginia, for which provision was made in the charter of 1606. It was given not only very complete jurisdiction over the two colonies which were founded on the American coast between the thirty-fourth and forty-fifth degrees of north latitude, but over the entire vast tract as well and over any and all colonies which should be founded within it.^ It was not required to report to the privy council. Not any of its members were privy councillors. This certainly suggests the possibility that colonial affairs might have been intrusted to a body distinct from the privy council, and that they might have been organized quite by themselves.
But too great a weight should not be attributed to the omission from a charter or commission of express reference to an obligation to report before the privy council. The king might take business of that kind into his hand at any time, and such action meant that it would come before the council. Moreover, all the appointees on the king's council for Virginia were members either of the London or Plymouth companies. If the creation of something resembling a council of the Indies had been contemplated, it is hardly supposable that its personnel would have been selected from so narrow a
^ Brown, Genesis, L 66, 66.
THB KATUBB AND 0BGAN8 OF IMPERIAL CONTROL 21
circle. It has very much the appearance of a device the pur- CHAP, pose of which was to guard the interests of the king within those companies. That in fact was all the council ever ac- complished, for when, in 1609, the London company was reorganized and the Plymouth patentees became inactive, the council disappeared. In general, whatever boards of com- missioners, or committees, or subordinate councils existed, it is certain that the relations between colonial patentees and the king in council were direct. ^
Under any system where the administration of government from a remote centre becomes necessary, agents must some- times be despatched for the purpose of procuring or giving information or contributing to the settlement of disputes. Results can often be more satisfactorily attained in this way than by means of ordinary correspondence. In the British system this gave rise to the royal commission and the colonial agency, which were the complements the one of the other. Commissions were from time to time sent to the colonies by the crown, while the term " agency " was applied to individ- uals who were sent for similar purposes to England by the de- pendencies. Commissions were resorted to at intervals and in times of crisis. In a special sense such appointees repre- sented the authority of the king. In addition to procuring information they were often given limited executive or judicial powers, to be used in the settlement of disputes within a colony, between neighboring colonies, or between a colony or colonies and the home government. In early times colonial agents also were sent occasionally and on special errands. But, as relations became developed and established, they were more frequently employed. In the case of royal provinces they were quite regularly appointed from the first, and as the royal provinces developed into a system, the agencies became a regular feature of colonial administration.
The effect of the creation of special jurisdictions, like the chartered colonies, was to interpose grantees, with their groups of officials, between the crown and those of its subjects who had gone to live in the colonies. That was a most significant result of the settlement of the colonies and of their remoteness from England. Englishmen who, while they remained in the
22 IMPERIAL CONTROL
PART realm, were immediately subject to the control of the execu- ^^' tive in all its branches and to all acts of parliament, by re- moval across sea escaped from those relations and instead became subject to colonial proprietors, with their legislatures and officials. Behind and above all these were the sovereign rights of crown and parliament, but the relation in which the colonist now stood to these bodies was no longer immediate, but mediate. Between the two the proprietors and their officials, or the general court with the elected officials of the corporate colonies, had been interposed. This, in the realm of administrative organization, was the result which followed from the settlement of the colonies on a remote continent under the impulse of private initiative. An essentially feudal relation had been created, with a large measure of practical immunity.
But from the first the need of conserving imperial rights was felt ; and, as the dominions grew and the rivalry of other competing motives developed, the strength of this feeling increased. Considerations of national wealth and power, as emphasized by the mercantilist theories of the time, enforced the need. It became apparent first and chiefly in the spheres of war and international trade. Out of these general con- ditions arose the imperialist views of the later seventeenth century, the chief exponents of which were merchants, law- yers, and crown officials. They insisted upon guarding the interests of England in her colonies and upon subjecting them as a whole to a consistent and far-reaching policy. But under the system of chartered colonies the administra- tive machinery for accomplishing this was lacking. Without a corps of royal officials resident in the colonies it would be useless to attempt to overcome their particularism, or to es- tablish systematic control over them. The elected officials of the corporate colonies and the appointees of the proprietors were almost equally useless for such a purpose. Not a single royal appointee was re^dent in any of the chartered colonies. In the face of such a situation and for the attainment of genuine imperial objects the English government was as helpless as would be the human body without arms or hands. These it must secure by the addition of royal officials —
THE KATUBE AND ORGANS OF IMPERIAL CONTROL 23
partly in the place of those of the colonies — and by estab- CHAP, lishing as far as possible an immediate relation between the ^^^ crown and the colonists.
This change was effected by the substitution of a system of royal provinces for the chartered colonies which had come into existence at the beginning. Its effect, when viewed from the administrative standpoint, was to create in each province a corps of royal officials, who received their appointment and instructions, not from any proprietor or body of colonists, but directly from the crown. These, when the system was fully developed, were the governor, the coun- cillors, the secretary, the surveyor general, the attorney gen- eral, the chief justice, customs officials, and, if regular troops were stationed in the province, officers of the army and navy. By means of these officials land was granted, justice administered, the militia organized and commanded, rev- enue collected and its expenditure to an extent controlled. In the royal provinces also the tendency was for the English Church either to be established or to be favored by law.
These conditions, even though they were not fully realized, gave the king greater strength in the royal province than was possible under the chartered colony. For purposes of imperial administration it was better adapted than any other form of colonial government. It had all the advantages of the proprietorship, with the additional characteristic that the king in this case was proprietor as weU as sovereign.
The transition was effected in part by causes operative within the colonies themselves, and in part by pressure from the home government. The nature of the former has been sufficiently indicated in the earlier volumes of this work. The changes there referred to appeared chiefly in the proprietary provinces, and were the result of a struggle between the colonial executives and the lower houses of the legislatures, the houses which were in a special sense repre- sentative of the people. Against not a few phases of pro- prietary government, when at its best, the people were always protesting. In the corporate colonies also a change of sen- timent came about among classes and localities which in- clined them more favorably to the advances of the home
24 DCPBBIAL COKTBOL
PART government. Tendencies of this kind facilitated the tran- sition to the system of royal provinces. But it is not with this phase of the transition that we are now concerned. Instead of further considering the internal causes which operated to bring in the system of royal provinces, the at- tention of the reader will be directed to those which pro- ceeded from the home government. We have to do in this division of the subject with the beginnings of imperial control over the North American colonies, and its develop- ment and maintenance was the essential function of the sovereign power in the founding of the British empire.
CHAPTER II
THE DISSOLUTION OF THS VIBOINIA COMPANY OF LONDON
To the royal officials who were seeking to establish or CHAP. maintain control over colonial affairs, the place of resi- ^ dence of those who received proprietary grants was a matter of great moment. Both judicial and administrative control could be much more easily exercised over a corporation or proprietors resident within the realm than it could over those resident on a distant continent. The form under which land, and especially trade, was managed was also of some importance. The government first came into prominent and significant relations with the Virginia company and the New England Council. Both were corporations located within the realm, but at the same time proprietors of provinces. Because located within the realm they were subject to the same regulation and interference, both from king and par- liament, as that to which corporations generally were liable. The experience of the Virginia company, together with the little we at present know concerning other companies at that time, would lead to the inference that the tinkering came more from the executive than from the legislature. The present chapter will be devoted to a discussion of the relations between the crown and the Virginia company, as an illustration of British colonial policy in its earliest phase* It will be observed that the transactions occurred chiefly between the king and the company, and not between the king and the colonists. The latter were affected indirectly and through the fate of the company. So long as the work of colonization was in the hands of corporations resident in England, this was necessarily the form which the exercise of royal control assumed.
It is true that during the early years of the Virginia enter- prise, while the colony existed under the charter of 1606, as well as later, the activity of the king and his ministers was
26
26 IMPBBIAL CONTBOL
PART enlisted to prevent Spain from ascertaining the location of the ^ ^' J new colony, and from attacking or destroying it.^ This was effected through diplomatic delays and avoidance, so far as possible, both of discussion of the enterprise and of the as- sumption of direct responsibility for it, while at the same time friendly relations were maintained with Spain. All the time, however, with the knowledge and often with the direct assistance of the government, the patentees were striving to so establish their colony and strengthen their hold on Vir- ginia that Spain could not dislodge them. It was a quiet but persistent struggle to nullify, so far as eastern North America was concerned, the provisions of the papal bull. The protection which in indirect ways the government af- forded, contributed toward the successful result. While the government was serving the interests of the colony in the diplomatic sphere, its directive influence was doubtless ex- erted upon the company itself ; but, owing to the dearth of records, the history of its activity during the administration of Sir Thomas Smith cannot be traced. By the time the Sandys-Southampton party came into control, Virginia and the Somers islands had become large producers of tobacco. That made them important, both from the commercial and the fiscal points of view. The fact that the majority of the officials and active shareholders of these companies were not in sympathy with the court, introduced a political element into the situation. These conditions, when taken together, occasioned the persistent and hostile interference of the king with the affairs of the company, which finally resulted in its dissolution.
The attitude of the king toward the company under its new management was first shown in connection with the election of treasurer in 1620. When Sandys's term of office had closed and he had submitted his report on the work of the year, a message ^ was received from the king signifying
1 The proofs ofthis are in Brown, Genesis of the United States, I.
> Becords of the Virginia Company, I. 348, 357-858. The references throughout this chapter are to the new edition of the Court Book of the Company, which has recently been published by the Library of Congress, under the editorship of Miss Susan M. Kingsbury
DISSOLUTION OF THE VIBGIKIA COMPANY 27
his pleasure that the company should choose as its treasurer CHAP, one of four men named by himself, Sir Thomas Smith, Sir ^ Thomas Roe, Alderman Robert Johnson, Maurice Abbot. This was an application to the company of the e<mgi cTelire^ the instrument by which the Tudors had humbled the cathedral chapters and annulled their rights of election, and apparently its object was to prevent the reelection of Sandys, who was leader of the country party in the house of Commons, or the choice of any offensiye member of the opposition. The company was brought to a strait by this message. After much debate they voted to adjourn the election till the next quarter court, and appointed a com- mittee, headed by the Earl of Southampton, to petition the king that he would not deprive the company of the right of free election to which by charter it was entitled.
At the next quarter court Southampton reported that the king had said he did not intend to limit their choice to the names he had mentioned, but simply to recommend them as desirable candidates. Also he said it was necessary to have as treasurer one who could freely approach the royal person. The company thereupon^ chose the Earl of Southampton treasurer, with John Ferrar as deputy. This, while intended to meet some of the objections of the king, also insured the continuance of the same methods of administration as those which Sandys had followed; and, indeed, his influence when out of office continued to be almost as great as it had been when he held the treasurership.
In 1622 the king once more presented candidates for treas- urer, and for deputy as well.^ But they were again passed over, Southampton and Ferrar being reelected. A committee headed by Lord William Cavendish was then sent to explain this conduct to the king. His majesty seemed not well satisfied that, out of the ten candidates whom he had named, not one had been chosen. He expressed the opinion that merchants were fittest for the government of the company, and instanced Sir Thomas Smith as one by whom the produc- tion of staple commodities had been begun, while now the colony exported only cotton. Lord Cavendish replied, though
^Records of the Va. Co. L 384. > Ibid. II. 28, 34-36.
28 IMPERIAL CONTBOL
PART with the same sort of exaggeration which the king had showiif ^^' J that the introduction of tobacco and neglect of staples had been the work of the Smith and Johnson administration. Since that time the company had labored to erect iron mills, plant vineyards, produce silk and a variety of other com- modities. They hoped to give his majesty proof of this ere long. Since the time of Smith the colony had grown to al- most as many thousands, as it then had hundreds, of people. With an expenditure of £10,000 more had been accomplished than by Smith with £80,000. In the same strain Sandys wrote to the Duke of Buckingham and asked for the hdp of the favorite, in promoting the cause of the company at court. Thus stood relations when tobacco became an im- portant subject of negotiation with the king.
In those early days of its history the feeling that tobacco was a noxious, or at least a useless, product was stronger and more widespread in England than it is at present. The attitude of James I toward the weed is well known from the ^^ counter-blast " which he directed against it. The attitude of Charles I was not very different. English statesmen of the time always deprecated the fact that the Virginians devoted so much of their labor to the raising of tobacco, and spoke with regret or protest against a plantation being founded so largely on smoke. In the many royal proclama- tions which were issued concerning the tobacco culture the same opinions were expressed. As late as 1637 the privy council wrote that the king expected some better fruit than tobacco to be returned from Virginia. During a debate in the house of Commons in 1621 on the subject of tobacco there was a general and spontaneous outburst of feeling against the weed. Member after member inveighed against it as ^^ vile,'' and an object of their abhorrence, and insisted that it should be entirely excluded from the realm. Resort, they declared, should be had to something else for the sup- port of colonists in Virginia. But tobacco was already a source of revenue which could not easily be spared. It was also raised in England and Ireland and used for medicinal purposes. Merchants were interested in its transportation and sale and colonists in its production. An increasing
DISSOLUTION OF THS VIBGINIA COMPANY 29
proportion of the people, at home and abroad, were becoming CHAP, its consumers. The Spanish product of superior quality commanded a high price in the market. Interests had gathered about the product which insured the continuance of its use on a large scale, and for a long time to come it received a large share of that attention which the English govern- ment was able to give to the colonies in general. It appears that Spanish tobacco, which was of superior quality, was the first to recommend itself to the English market. Later came the product from the English colonies — Virginia and the Somers islands — followed by that from Barbadoes and the Leeward islands, from Maryland and North Carolina. By 1619 both the Virginia and Somers islands companies had begun to import considerable quantities of tobacco, of poor or medium quality, into England. At the same time it was being raised as a garden product or even on a some- what larger scale within the realm. Here was a new in- dustry, the fiscal possibilities of which were attractive ; but its moral and other social tendencies were viewed with suspicion. With it were involved interests in the colonies and in the realm, while it affected foreign relations as well. Conditions such as these called imperatively for regulation, especially with a government which was controlled by the traditions of the early seventeenth century. In 1619 two royal proclamations were issued providing that no tobacco should be sold in England until the custom and impost on it was paid and until it was officially inspected and sealed.^ The duty at the time on tobacco of the quality which came from Virginia was 6d, per pound. As Virginia tobacco was then selling for about 58. per pound, the duty was the equivalent of an ad valorem rate of about ten per cent. The sealing of the tobacco, which was referred to in the proclama- tion, implied a guaranty of its quality. This was arrived at by the process of separating the good from the poor quality, which was then known as ^^ garbling." It occasioned an ad- ditional impost which, at the time of which we are speaking, whether just or not, was fixed at 6(2. per pound. The total
1 Bymer, Foedera, XVIL 191. Beferences to proclamationB of May 26 and Kovember 10, 1610.
I
OU IHPBBIAL CONTBOI.
PABT impost, then, on VirginU tobacco was 12(2. per pound. B] t ' . there was a clause in the charter of the Virginia compai (1609) which exempted them from the payment of any dw in excess of five per cent on commodities which they should ii port into the realm or the colonies.^ It also provided that < the payment of this duty they might freely reexport the products from England to foreign markets. These provision of course, would sot avail against an act of parliament, ai by the government at the time were evidently regarded i inferior in validity to orders in council and such other ai ministrative acts as, under the Tudors and early Stuart gave rise to the book of rates or customs tariff.
In the summer of 1619 the Vii^nia company had its fin encounter with the government on the subject of tobacci Abraham Jacob was then a farmer of the customs. H refused to permit the delivery of a cargo which had recentl come from Virginia unless the impost, above referred to, i 12d. per pound was paid. The officers of the company urge as a plea against this demand the provision of their charte and petitioned the treasury board.' This resulted in tt despatch of a letter from the privy council to Jacob instruc ing him to deliver the goods, the adventurers even offerin to leave one-half the cargo with him if they might offer tt rest for sale and thus save it from perishing. But Jacol who was later called by Sandys a " tough adversary," n fused to do this, unless the company brought him a fu discharge from the council, which it could not then procun Hence the goods were detained for more than four month and at an estimated damage to the company of X2500. Th Somers islands company bad been treated in the same waj though the period during which it was exempted by chart€ from imposts had not elapsed. Because of these acts petition was sent by the Virginia company directly to th privy council. This resulted in a hearing, at which th attorney general declared that the company was free by i1
1 SlmUar cUubbs appear in the early cbarteiB of other coloniztog con poDieB, inclading tbatof the Somers ialandH compiuij. The five percent rai which was named was an ancient customs dntj.
» Recs. of Va. Co. I. 246, 258, 291.
DISSOLUTION OP THE VIBQINIA COMPANY 81
patent from the imposition. The council now ordered CHAP. Jacob to deliver the tobacco, the company paying only the ^' duty to which it was legally subject.
Shortly after came a suggestion from the king that the company should farm the impost on tobacco, but continue to pay the 12(2. duty, that is to say, 3(2. as provided by the charter, and 9(2. additional for five years in consideration of the issue of a royal order that no more tobacco should be raised in the realm .^ On December 30 a proclamation pro- hibiting the industry at home was issued.
Thus was initiated a course of action which was to be maintained by the British government during most or all of the century. Though in its early stages this policy was probably the outgrowth of moral considerations, it soon came to be regarded in the light of a partial compensation for the various restrictions which were laid on the tobacco industry of the colonies. But the government found it an extremely difficult, if not an impossible, task to enforce this regulation. This is proven by the long series of proclamations on the subject which were issued during this and the succeeding reign. In the spring of 1620 the company learned that tobacco was again being planted in the realm, and plead for a mitigation of the impost,^ but this does not appear to have been secured. The continuance of that part of it which was popularly known as a " garbling duty ^ was insured by a proclamation of April 2, 1620, designating a commission of eight members, who should prepare rules for ^* distinguishing of the aforesaid Drug . . ., whereby the Goodness or Bad- ness of the said tobacco may be discerned." It was pro- vided that when such rules were perfected and enrolled in the chancery, they should be duly enforced.'
By a proclamation of June 20, 1620, ^^ for restraint of dis- ordered trading in tobacco," provision was made not only for the enforcement of the earlier orders against the raising of the weed in England, but that no one who was not authorized
^ Hecs, of Va. Co. L 290, 292. The proclamatioii is referred to in Rymer, X VTL 233. It is (»lendared in the 4th Report of Hist Mss. Com. Ft. I, p. 299. a Recs. of Va. Co. I. 316, 321, 327, 339, 342. * Rymer, XVU. 191 etseq. On garbling see also Recs. of Va. Co. II. 60.
82 OfPEBIAL CONTBOL
PART by patent so to do should import any tobacco into the iealm. '^ With this act the policy was inaugurated of bestowing on private parties the monopoly of the importation of the com- modity for limited periods. This was in full harmony with the administrative methods of the time, and a patent for one year was granted to Sir Thomas Roe, Abraham Jacob, and others, they paying the king a rent of £10,000 for the privilege. All tobacco which was legally imported was com- manded to be sealed, in order to distinguish it from that which was smuggled. None whatever should be sold which was not sealed, and full powers of search and seizure,^ under general warrants with writs of assistance, were given the customs officers as an aid in enforcing the proclamation. The Virginia and Somers islands companies could now im- port tobacco only in such quantities as the latter chose to admit. As the result of an application to the king, the two companies were permitted by the undertakers to import and sell in the realm during the year 55,000 pounds of tobacco. As this was about the amount which the Somers islands com- pany alone could import, and since the production and sale of tobacco was its only resource, the Virginia company resolved for the coming year to vacate the field in the in- terest of the sister company, and to bring no tobacco to the English market. It arranged, instead, to dispose of its product on the Continent, and to make Middleburg ^ in the Netherlands its port of entry and sale. A factor was ap- pointed to act as agent for the company at that place, and when, in July, 1621, the magazine ship Bona Nova returned from Virginia loaded with 40,000 or 50,000 pounds of tobacco, the master was ordered to depart at once for Middle- burg and deliver the cargo to the factor and consignees. A part of this cargo had been shipped on the account of the subscribers to the old magazine and a part belonged to the magazine of 1620.
But this plan the company found it impossible to execute, for it violated what, under the influence of mercantilist con-
1 Recs. of Va. Co. 1.189, 141, 406 ; H. 68 ; Rymer, XVII, 233. There are entries relating to this in the Privy Council Register, under dates beginning on April 6, 1620. > Recs. of Va. Co. I. 406, 604, 626.
DISSOLUTION OF THE VIRGINIA COMPANY 33
ceptions, were understood to be the interests of England, chap. These indicated that a colonial product so valuable as tobacco ^ ^ should be landed wholly in the realm. Presently complaint ^ was made to the privy council that the company was setting up a trade in the Netherlands and was transporting its com- modities thither. An inquiry was at once sent by the board to the company to know whether it proposed to continue this trade or not. A court was called, and ^^ after much dispute and many reasons given of the impossybillyty of beinge bound to bring in all their comodities into England with- out fallinge into great inconvenyencies," an answer was pre- pared and sent to the council. In this the company claimed that the restraints to which it was subjected were greater than those imposed on the Muscovy company or on any other corporation; that several of the patents which it had granted in Virginia contained clauses guarantying freedom of trade with other nations, a privilege which the company itself had previously enjoyed; that the company did not feel itself em- powered to limit the trading privileges of private planters or to prescribe the business for about a thousand adventurers who were resident in England. A direct trade, they said, had also arisen between Virginia and Ireland, by which the colony was being supplied with cattle and other necessities, and this would be destroyed by the regulations which had been sug- gested. The claim to freedom of trade in general was urged by the company. But the council was imperative, and on October 24, 1621,^ an order was issued forbidding the export of any Virginia commodities to foreign parts until they had been landed in England and had paid the duties there. This order was repeated in March, 1623, thus clearly revealing the fact, even at this early date, that it was the intention of the government to make the ports of the realm the staple ports for colonial trade. The two companies thus became subject to the stint and to the conditions established by the con- tractors or monopolists who were recog^zed by the govern- ment, among which was a garbling duty. For the year 1622
I Rec8. of Va. Co. I. 626.
s Rid, I. 628, 63(V-632, 637 ; IL 322-323 ; CoL Papers, 1674-1660, p. 26.
VOL. lU. — D
34 IMPERIAL CONTBOL
Jacob received the monopoly ^ of importation, and the com- panies were ordered to bring in all their tobacco subject to his privileges. But as a partial compensation the crown pro- hibited the planting of tobacco within the realm, and in return for this favor the companies consented to the doubling of their duties for five years.
But soon plans were under discussion which were intended to transfer the monopoly that Jacob held to the companies themselves. ^^The variety of crosses," said Sandys later,^ ^^ advised them to listen to the making of some settled con- tract with his Majesty, as well for his Majesty's profit, as for the benefit of the plantations, thereby to exclude new practices of the same or other new projectors." Thus some of the principal members of the companies conceived the idea of a contract with the crown* It was discussed by Sir Arthur Ingram and Sir Edwin Sandys with Lord Treasurer Middlesex. The lord treasurer had long been a member of the Virginia company and one of its councillors, and it was probably by him that the suggestion was brought before the privy council. Middlesex in preliminary discussions ' with Sir Arthur Ingram and Sir Edwin Sandys suggested that a contract should be arranged according to which the London and Somers islands companies should take the place of the existing patentees and themselves enjoy the monopoly of the importation of tobacco into the realm and Ireland. In this way they would have full control of their commodity, and, judging from the large bonuses which recent monopolists had paid, Middlesex thought that the companies could afford to pay a considerable rent to the crown. At his request Sandys and Ingram considered what terms the companies could afford to make, and concluded that they could pay the king one-fourth of the tobacco imported. The lord treas- urer, however, thought that, in view of the large sale of tobacco and its price, a proper g^nt to the king would be a third, while in addition the existing rates of duty — 6(2. per pound for roll tobacco and 4(2. for leaf — must be paid.
1 Re<». of Va. Co. L 442 ; 11. 67.
* JbicL n. 176. See a somewhat different a(sooiint in Discoone of the Old Company, Ya. Mag. of Hist L 290 et $eq, * Ibid. IL S6 et ieq.
DISSOLUTION OF THE VIRGINIA COMPANY 85
The lord treasurer's proposition was submitted by Sandys CHAP, to the two companies and it was by them entertained. Committees were appointed to further consider it. The first proposition^ of the companies was that, in return for the grant of the sole right of importation for seven years, they would pay the king £20,000 per annum. This they estimated would be the value of one-fourth of the commodity imported. That should go directly to the king, and if it yielded less than the amount named, the difference should be made good by the companies. They would also pay the duty of 6(2. per pound for roll tobacco and 4d. per pound for leaf, as specified in the book of rates, but they asked that this be fixed by computation at an average sum. Owing to the superior quality of Spanish tobacco and to the demand for it in England, coupled also with the strong Spanish influence at court, a concession in favor of that product was made by the companies. The amount of Span- ish tobacco which should be annually imported was fixed at not more than 60,000, nor less than 40,000 pounds, provided the prices at which it was being sold in Spain were not in- creased, and that the market for tobacco were left as free there as formerly it was.' Of the importation and sale of Spanish tobacco, of the disposition of the product of private planters in Virginia as well as their own product, officers appointed by the companies should have exclusive control. Expenses should be charged proportionately upon the king's share and that of the companies. Finally, the king was asked to limit by proclamation both the wholesale and retail prices of the commodity and to forbid the planting of tobacco both in England and Ireland. After considerable discussion, as a result of which the companies abandoned their insistence on the issue of a proclamation fixing the prices of tobacco in England, and unwillingly accepted a clause which required them to import during the first three years 80,000 pounds of the best Varina tobacco or be answerable to the king for
1 Ibid. n. 68.
' At this time, though Spanish tobacco sold for mach higher prices than Virginia tobacco, the duties on it were the same. That inequality was later remedied.
86 IMPERIAL CONTROL
PART every pound that was lacking, the contract seemed to have ^^' been reduced to a form which was satisfactory to the government. The contract was to continue for seven years. ^
When this point had been reached, a committee which had been appointed for the purpose reported on the administrative organization that was necessary for executing the contract. It recommended tliat a director of the enterprise should be appointed, and that associated with him should be a deputy, a treasurer, and a committee. A bookkeeper, a solicitor, an husband, and a beadle should be appointed, while the ap- pointment of two cashiers and a clerk was to be left to the treasurer. The officers were all to be salaried, and for the sake of economy it was suggested that for the first year the same individual might perform the duties of both deputy and treasurer.' It was estimated that the total salary list would be about £2500 per annum. The report of the com- mittee met with the general approval of both companies, the opinion being held that the business could not be well managed with a smaller number of officials or at much less cost. Sandys was therefore chosen director and John Ferrar deputy, though both men sought on various pleas to excuse themselves. Had this plan been carried into execution, its administrative relation to the company would apparently have been like that which was borne by the later mag- azines, to which reference has been made in an earlier volume.
At this point the case against ex-governor Argall,^ a protege of the Earl of Warwick, to which extended refer-
1 The contract in a form most closely approaching that which it finally assumed is in Recs. of Va. Co. II. 86. Later debates and emendations appear, ibid. 97, 121, 138-140, 147-148.
3 For list of the lower officials, with their salaries, see ibid. II. 14^151. See also pp. 144 and 146. On p. 268 is a good description by Sandys of the burdensome duties which would fall upon a director in that business. The discussions over this matter occupy much of the second volume of the records.
« See edition of Recs. of the Co. in Colls, of Va. Hist. Soc. II. 29-48, which is a compilation of entries under various dates during the years 1620-1622, to be found in the new edition of the Records.
DISSOLUTION OF THE YIBGIKlA COMPANY 37
ence has been made in the first yolume of this work, came CHAP, up for final decision by the company. Sandys led in the prosecution of Argall and formulated the charges against him with his usual ability. Opinion among the members of the company ran strongly against the ex-governor, and the verdict of his court-martial against Edward Brewster was declared un- lawful and of no validity.^ A committee was also appointed to examine his accounts. When the case had proceeded thus far, Samuel Wrote, a cousin of the Earl of Middlesex, but one who had hitherto been a respected member of the company and was now in its council, burst forth in severe denuncia- tion of its management.' This was directed against Sandys, Southampton, and Ferrar, and what some jealously regarded as their overweening influence. Some began to say that members were prevented from speaking their minds, and that measures were carried with a high hand. One of the chief points also against which Wrote inveighed was the salaries which it was proposed to pay the officials who had been appointed to manage the tobacco monopoly. He charged that they were extravagant in amount, and that this, like other matters, had been too exclusively under the manage- ment of Sandys. When Wrote after a stormy meeting of the council had not only refused to withdraw his utterances, but continued his insolent bearing, especially toward the Earl of Southampton, and after for a time he had absented himself from meetings of the council and committees, he was suspended from the company. His conduct throughout was such as to indicate that he was the mouthpiece of a faction which was forming against the existing management. It soon appeared that the king and lord treasurer were in- teresting themselves in Wrote's charges,^ that they were perhaps watching the discussions with a view to the possi- bility of utilizing them as an excuse for again interfering in the internal afifairs of the company. The friends of Sir Thomas Smith and Alderman Johnson were ready to avail
1 Ibid. 42, 46. * New edition of the Records, n. 163 et seq,
* See the statements of Sir Henry Mildmay made at a preparative court,
held Febroary 8, 1628, Recs. II. 216-248, 252 ; also Discourse of the Old
Company, Va. Mag. of Hist. I. 292.
38 IMPERIAL COKTBOL
PART themselves of this as a means of recovering control of the
^ ^^' J company or of destroying it.
There is evidence that almost from the start the adminis- tration of Sandys and Southampton had been viewed with aversion. Those whom it had supplanted would naturally so regard it. The knighting of Yeardley, who stood near to Sandys, greatly offended Sir Thomas Smith in 1619, and some other members of the company are said to have felt bitterly toward the governor. Sandys wrote, in September, 1619, that he had to meet much malignity in connection with accounting, before which he believed he would have quailed if it had not been for the support of the Earl of Southampton. As we know from his own statement, expenditures under the management of Sandys and his associates were most liberal. Large numbers of colonists were sent to Virginia, and the scale on which business was managed by the company was enlarged upon with pride by Sandys and the Ferrars in all their statements. But this had its unfavorable and danger- ous tendency. Yeardley, in the summer of 1620, warned Sandys not to send over colonists faster than they could be cared for, not to undertake works greater than Virginia could bear. Mortality among settlers, he said, was great, and at times they were in danger of famine. There is some evidence, though of course it does not appear in the formal records of the company, that their heavy expenditures in- volved its managers in some financial embarrassment. This fact helped to give currency to many exaggerated or false statements by enemies of Sandys and the Ferrars. They charged that the resources of the company were being wasted by the wholesale ; that one Gabriel Barber, whom Sandys is said to have employed as a secretary, was deeply involved in this ; that incriminating letters had been destroyed and false entries made. It was also said that Sandys and the Ferrars owned little or no land in Virginia, and thus had no stake in the colony which they were recklessly mismanaging. Wrote is mentioned as among those who were circulating these complaints. The fact seems to be that the charges were being used to an extent by the Smith- Warwick faction at the time when the question of expenditures under the tobacco
DISSOLUTION OF THE VIBGIKIA COMPANY 89
contract came up, and even when Wrote launched his accusa- CHAP, tions publicly against the management.^ ^
An immediate consequence of Wrote's outburst was that a proposition, emanating from him and his friends, for the reduction of the salary list proposed for the officials who were to administer the tobacco monopoly, was submitted to the companies and debated at length.^ It was claimed that the companies themselves by means of extraordinary courts could perform the functions of a director. A merchant could be appointed treasurer at a salary of £100. The salaries of others might be fixed at lower rates, and in this way it was estimated that £1800 per year might be saved to the two com- panies. In the very interesting debates upon these proposals Sandys and his friends, supported by nearly all the members who were in attendance, argued that it was impossible to secure good service, of the difficult and responsible nature that was required, for less than the specified sum. The proposition to (Substitute courts or a board for a single di- rector was condemned as not only a departure from the practice of other companies and joint stocks, but as bad pol- icy in itself. Sir Edwin Sandys' said, ^Hhat in a body con- sisting of many members, which must all concur in one action, there must be by necessity of nature and reason one head to contain and direct them unto unity, that to make this one head two courts, to be assembled upon every needful occasion, was a thing not only repugnant to the celerity of despatch, but also of insupportable toil both to the Governor, Council, and Company." A case was also cited from the experience of the Somers islands company, where a question, which had passed two ordinary courts, had been much debated in a pre- parative court, and concluded in a greater court, because of the demand of one man who had not been present, had to be ag^in read and argued.
1 The authority for the above statements is to be found in letters of Sandys and Teardley in the Ferrar Papers, and in material contained in copies of some of the Manchester Papers ; all of which, in manuscript form, is now in the Library of Congress. The evidence, as marshalled by Sir Nathaniel Rich, is in Eighth Report of Hist. Mss. Comm. App. Pt. II.
* Recs. of Va. Co. n. 225 et seq. * Ibid. 229.
40 IMPERIAL CONTROL
Upon the question, whether or not £100 was a sufficient salary for the treasurer of the tobacco monopoly, it was stated that it was not safe to commit stock to one who would accept the office for so small a salary, and that he must give security for heavy money transfers. The experience of the East India company was cited to the effect that it had just paid a salary ranging from £800 to £500 to its treasurer.
After all the proposals of Wrote and his friends on prelim- inary debate had been most carefully examined, weighed, and rejected by overwhelming adverse votes, in a joint meeting ^ of the two companies the contract, as signed for seven years by the lord treasurer and approved * by the privy council, was submitted and accepted. Then the question of salaries was taken up for final settlement. Several of the opponents of the scheme sought to stave this off by declaring that they were not ready for debate. Southampton marvelled at this, inasmuch as they had begun the trouble. Sandys, who had now resigned the directorship, spoke his mind, setting forth the heavy duties of a director in such an enterprise, and stating that two men instead of one were needed. Sir Nathaniel Rich and Alder- man Johnson then presented some more objections which, though indirectly relating to salaries, concerned directly the division of expense between the two companies. These were all termed generalities by the majority and rejected.
Thereupon an effort was made to induce some one to take the place of director. Sir Nathaniel Rich, Sir Thomas Wroth, Edward Johnson,^ were offered the place, but all professed themselves unequal to it. It was then voted not to accept Sandys's resignation, and he was earnestly entreated not to retire, as such a course was likely to prove fatal to the enter- prise. Deputy Ferrar then presented a plan,* which was carefully worked out in every detail, for the care of the to- bacco after it arrived in port and while it was on sale, the object being to prevent smuggling and losses of all kinds to the company, and to secure just returns to each private planter
1 Recs. of Va. Co. II. 264 et seq.
* The order in council approving the contract was dated Feb. 2, 1628. Colonial Papers, 1574-1660, p. 37.
< Recs. of Va. Co. 272. « Ibid. 2S1 e( seg.
DISSOLUTION OF THE VIBOINIA COMPANY 41
whose crop was imported and sold under the auspices of the CHAP, company. This involved the difficult problem of fixing ^ j
prices, and it was resolved that in this, as in all other mat- ters which concerned the contract, the two companies must act jointly and that nothing should be determined without the joint consent of both.
At this juncture the malcontents complained to the king and council of alleged dissensions and suppression of free discussion in the Virginia company.^ Wrote and Bing were put forward for this purpose, while Sir Nathaniel Rich en- larged upon the injustice of granting so large a proportion of the tobacco to the king. The king at once took advantage of this to state that, in consideration of the license for lot- eries and of many other favors which he had done for the com- pany, contract or no contract, the company ought to bring all their commodities into the king's dominions, so that they might pay custom there. The opposers were elated by this, and Wrote stated that a petition from Virginia in favor of the policy to which the king referred had been suppressed by Deputy Ferrar. The truth, however, was that the peti- tion^ contained simply an appeal from the colonists for lib- erty to send their tobacco to England, that product having at the time been excluded from English ports by royal procla- mation.
But the evil was done. The privy council summoned repre- sentatives of both parties in both companies to appear before it and settle the tobacco business. At the hearing which followed, and which was numerously attended. Lord Cav- endish, treasurer of the Somers island company, was chief spokesman for the two companies. Bing made a long and vio- lent speech against the contract, alleging oppression in the passing of it, and using such insulting language about the Earl of Southampton as to call forth a severe rebuke from the lords of the council, and to result in his subsequent imprison- ment.^ The most that he could make out was, that the rank
^ Ibid, n. 207, 802 et seq. A discuasion of these points at length will he found in the Relation of the late proceedings of the Virginia and Somers Islands Companies, ibid, 862 et seq. See also Discourse of the Old Company.
* Ibid, 80a * Colonial Papers, July 25, 1624.
42 IMPERIAL CONTROL
PART of Southampton and his associates had overawed some of ^^* the generality, and that an expression of Southampton to the effect that they must accept the contract or do worse had been misinterpreted. The point was also raised that the contract would be injurious to the plantation; but to this the company had a ready answer, that it had accepted the contract not as perfect, but as the best that could be had.
Though the lords of the council seemed to have been favorably impressed by the representations of the company, they renewed the demand that all the products of the colo- nies should be brought to England, and seemed still to feel offended because, a year and a half before, an attempt had been made to carry some of them to the Netherlands. On March 4, 1623,^ this sentiment found decisive expression in the renewal of the order of October 24, 1621, that all Vir- ginia commodities should be landed first in England. This was at once interpreted as the work of the ^^ opposers," and Sandys was set about the preparation of a reply to the council.' In this he argued that the Virginia company was engaged not merely in trade, but in colonization as well, and, as a result of its work as a colonizer, a large number of private planters had settled in Virginia. They enjoyed freedom of production and trade and should continue to do so. Over their industry the company had no control. Many of the commodities which they produced, like fish, caviar, pipe staves, sassafras, salt, ^^ and the meaner quality of tobacco, would not be salable at any saving price" in England, but might be somewhat profitably marketed else- where. The ships which went to Virginia usually made profitable indirect voyages. A remunerative trade had sprung up between Ireland and Virginia, whereby the col- ony secured cattle and other necessaries cheaply, and paid for them in tobacco. If the policy of the order in council was followed, all these profitable lines of trade would be ruined. But Sandys's paper did not occasion a recall of the order in council, while the order itself indicated that the tobacco con- tract was being abandoned by the government. Indeed a
1 RecB. of Va. Co. II. 321. « Ibid. 823, 326.
DISSOLUTION OP THE VIRGINIA COMPANY 43
proposal w2La now somewhat debated to allow free importa- CHAP, tion of tobacco from all quarters, a policy which Sandys at y j
once denounced as sure to so depress the price as to ruin the tobacco industry in the colonies. At this juncture, however, the subject of tobacco in general was lost sight of in the discussion of other questions that directly concerned the relations, as a whole, which existed between the company and its province.
In April, 1628, Alderman Johnson, as a representative of the opposition within the company, presented a petition ^ to the king, in which he contrasted the prosperity of Virginia under the administration of Sir Thomas Smith with the alleged discord, abuses, and lack of proportionate returns under the existing management. He asked that a commis- sion under the great seal be appointed to inquire into the condition of the colony when Smith's administration closed, including the expenditures and abuses which had arisen since that time; and to recommend such changes in the government of Virginia as would bring contentions to an end, punish the authors of evil, and best secure the prosperity of the undertaking. The commission was immediately appointed,^ with Sir William Jones, a justice of common pleas, at its head. This body was ordered to inquire into the past business transactions of the company, to find out what moneys it had received or collected, and how they had been spent. With special care it should inquire after alleged misuse of private parties, to the loss or injury either of the company or the plantation. They were to ascertain what orders or laws had been made which were inconsistent with the charters ; of what misgovernment the company had been guilty, and what injury adventurers had suffered in conse- quence of it. If unnecessary hindrances to trade within Virginia existed, these were to be investigated. The com- mission was finally to ascertain by what means contentions
1 Bees, of Va. Co. n. 346, 873 ; Neill, Virginia Company, 887.
s Colonial Papers, 1574-1600, 44, 62; Ms. Recs. of Va., Bland Copy, 126 ; Brown, first Republic, 620 et seq. Jones served until the following October, when by reason of other employment (presumably on the bench) he was excused. But the commission was ordered to continue its inquiry.
44 IliPEBIAL CONTROL
PART might be stopped, and both the business affairs and govern- • ^ ment of Virginia improved. In the performance of this duty the commission was given power to send for persons and papers and to examine under oath. It was to report to the privy council.
The companies were also ordered to write a general letter to the colonists, exhorting them to live together in concord, and no private letters referring at all to dissensions were to be sent. The privy council was also to write to both plan- tations, assuring them of the king's solicitude and of his purpose to make better provision for them. By an order in council of April 28, the letters of the companies were dis- allowed because they failed to certify the king's grace and favor to the plantations. The tobacco contract was by the same order dissolved. The company was told to bring all its tobacco to England, and 8d. in the pound was abated from the customs. But as Spanish tobacco was also freely admitted, the company found it far from possible to market all their products.^
In the spring of 1622, more than a year before the occur- rence of the events just related, the hatred with which Opechancanough and his followers had always regarded the English had culminated in a massacre ^ of the inhabitants of the upper settlements of Virginia. Three hundred and forty- seven had perished, among them being six councillors, George Thorpe, deputy of the college lands, John Berkeley, master of the iron works, and others upon whom depended the execution of the company's cherished plans. Jamestown and the lower settlements were saved by a timely revelation of the plot, for which the English were indebted to a con- verted Indian. The massacre greatly reduced the produc- tive power of the colony, and disappointed to an extent the hopes of the company for a steadily increasing return. It also contributed to increase the complications in which the company was becoming involved at home.
Soon after the massacre Captain Nathaniel Butler, who had been governor of the Somers islands, but had been forced
1 Col. Papers, April 28, 1623 ; Recs. of Va. Co. II. 367-369, 640 ; Discourse of the Old Company. ^ See Waterhoose's Relation, Neill, 318.
DISSOLUnOK OF THE VIRGINIA COBfPANY 45
to leave them in order to avoid examination into certain CHAP.
misdemeanors which he was charged with committing while ^^ [_
in office, came to Virginia.^ He found the province de- pressed and suffering from the effects of the massacre. Collecting all the unfavorable characteristics of the climate, soil, and settlements, as he saw them, he set them forth in a dismal picture of the province, which was circulated on his return to England under the title of ^^ The Unmasked Face of our Colony in Virginia, as it was in the Winter of the year 1622."' He found the plantations seated in un- healthy places, the settlements unprovided with wharves where landings could be safely effected, no inn where new- comers could find entertainment, food scarce and high, sick- ness prevalent, the dwellings no better than the meanest cottages in England, no fortification, and not a serviceable piece of ordnance in the province. In government the colonists had wilfully strayed from the law and customs of England. So great was the mortality among the inhabit- ants, arising from abuses and neglect, from the self-seeking of some of the company, and the poor administration of their agents in Virginia, that unless the evils were ^^ redressed with speed by some divine and supreme hand, instead of a plantation it will get the name of a slaughter-house, and so justly become both odious to ourselves and contemptible to all the world." This was the conclusion to which Captain Butler came after dwelling on all the unfavorable aspects of Virginia life and excluding everything which indicated improvement. That there was much truth in Butler's ac- count is proven from other sources. Several of the com- pany's plans for establishing new industries had been wrecked by the massacre or by adverse natural conditions. Sickness was still prevalent, and Jamestown was in an unhealthy location. Sandys and the Ferrars had never visited Virginia, and their plans were in some respects un- practical. But many of the defects to which Butler called attention were unavoidable, and their presence in Virginia is traceable long after the dissolution of the company. His
1 This is the account given of him in the Recs. of Va. Co. n. 400 et seq, > md. 874 et seq. ; NeUl, 896.
46 IMPERIAL CONTBOL
PART statement, however, served the purpose of the clique which was striving to manufacture a case against the company, and for a time it played an important part in their agitation. To the charges preferred by Alderman Johnson, as well as the pamphlet of Captain Butler, the company made sev- eral replies.^ For this purpose its active members resolved themselves into a large committee, and this held frequent sessions. The documents were formulated chiefly by Sandys and the two Ferrars, and set forth not only the just and able management of affairs within the company itself, but the progress which had attended its policy in the colony since the retirement of Sir Thomas Smith. A state- ment was procured from the colonists themselves that proved the exaggeration in the assertions which Butler had made. "A Declaration made by the council ... of their Judgments touching one original great cause of the dissen- tions in the Companies and present oppositions," ^ is a spe- cially suggestive statement of what the company believed to have been the personal and political motives which gave rise to the attack upon it.^ It represents the Earl of War- wick as the prime mover, and his friend Argall, with Sir Nathaniel Rich, Johnson, Pory, — the late secretary of Vir- ginia, — and the rest, as his supporters or instruments in the work. Their purpose was alleged to be either to control the company or ruin it. So sharp was the arraignment of the Earl and his party in this that Warwick procured an order by which Cavendish, Sandys, and the two Ferrars were confined for a time to their houses.* Southampton may also have received the same treatment. An attempt was made to attract Nicholas Ferrar away from the service of the com- pany by the offer of a clerkship to the council, or the posi- tion of envoy to the court of Savoy, but these he declined.
1 Recs. of Va. Co. IL 862, 381, 303, 397, 400. 2 75^^. 400.
* What the leaders of the Sandys party thought somewhat later of the statements contained hi Butler^s attack, may be seen in the Discourse of the Old Company, Va. Mag. of Hist. I. 205.
* Brown, First Republic, 622, 526-526, 629, 642, 567 ; Peckford, Life of Nicholas Ferrar, 132 ; Reos. of Va. Co. IL 433 ; Colonial Papers, 1674-1660, 46,40.
DISSOLUTION OF THE VIBGINIA COMPANY 47
The later career of the Earl of Warwick indicated that CHAP, personal rather than political motives were at the founda- tion of his quarrel with Sandys.
The company soon found that its most important powers had passed to the council and the royal commission, and that it was left with the task of defending itself against charges and executing a few orders of the commission. Conditions similar to those which existed under the charter of 1606 had returned. Not only had the privy council taken charge of all correspondence with the colony, but the king ordered * that all complaints against the company should be submitted to the commissioners, so that controversies should no longer occur in its courts. He also ordered the election^ of officers to be postponed and those who were already in office were continued until April, 1624, when the company held its last election. Reports of lack of food arriving from the colony, the council directed the company to supply what was neces- sary, and a sum was raised by subscription for the purpose.^ The royal commissioners instituted a prolonged investiga- tion, examining the company's papers and hearing witnesses. Their sessions were often held at the house of Sir Thomas Smith. The report which they made, while moderate in tone, was less favorable to the contentions of the company than to those of its opponents, and confirmed the king in his resolve to change the government of the colony.* Captain John Harvey, John Pory, Abraham Peirsey, and Captain Samuel Mathews, men who were later described by Sandys and his friends as ** certayne obscure persons " " found out by the Earl of Middlesex," were appointed as commissioners to Virginia and instructed to report fully on its condition. This was probably the first royal commission ever sent to an English colony in America.
The really decisive blow against the company was struck on October 8, 1628.* The deputy (Nicholas Ferrar) and several members of the company were called before the privy
1 Rec8. of Va. Co. n. 434. < Ibid, 461, 531, 635. < Ibid, 468 et seq, « Colonial Papers, 1674-1660, 53, 64 ; Brown, First Republic, 641-549. * Bees, of Va. Co. 460 et seq, ; Colonial Papers, 1674-1660, 51, 52 ; Brown, Eirst Bepublic, 550 et seq.
48 IMPERIAL CONTROL
PART council and told that the king had resolved, by a new charter, to appoint a governor and twelve assistants to be resident in England, to whom, in subordination to the privy council, he would commit the government of the colony and company. Provision was also made for the appointment by the king of a governor and assistants for the colony on nomination by the superior board in England. The company was ordered to assemble and resolve whether it would surrender its former charters and accept a new one with the changes just described. It was a measure which probably originated in political motives, though they might be veiled under the phrase " con- siderations of public policy," and its effect would be to leave the patentees with the trading privileges which they had under the charter of 1606 and nothing more. But a decision must be promptly reached, as the king had determined, in case the submission was not forthcoming, ^^ to proceed for the recalling of the said former charters in such sort as shall be just." This course of action was adopted in accordance with advice which had been given by the law officers of the crown more than two months before.^
It is not surprising that when this command was read in an ordinary court of the company, and even after it had been read three several times, ^Hhe Company seemed amazed at the proposition, so as no man spake thereunto for a long time." Finally the members who were present were roused from their stupor by the statement of the deputy that an answer was expected by the council on the following Friday. After considering that important business like this could be transacted only in a quarter court, they resolved to petition the council for respite until the order could be submitted to the entire company. A call was at the same time issued for a quarter court to meet on the 19th of November. But the king would not allow the decision to be postponed until that time, and called^ for a final answer on the 20th of October. Thereupon, at a meeting attended by almost seventy members of the company, it was resolved,
1 Colonial Papers, July 31, 1623.
« Recs. of Va. Co. IT. 478 ; Colonial Papers, 1574-1660, 63 ; Brown, 653 et seq.
DISSOLUTIOK OF THE VIBOIKIA COMPANY 49
with only nine dissenting votes, not to surrender the charter. CHAP. Within a brief time after this reply was received from the company, quo warranto proceedings were instituted by Attor- ney General Coventry before the King's Bench. Early in November an information was served on the company.^
As was customary in such cases, both the information and the reply of the company were formal. They recited the powers which had been bestowed by charter. The informa- tion closed with the statement that these liberties had been usurped to the damage and prejudice of the king and the great contempt of the sovereign, and with the demand that the patentees show by what warrant they were using the same. The prayer of the company in its reply was that the suit might be dismissed, since they had never used or claimed other privileges than those to which they were legally entitled by the charter.
The members who were in attendance when the writ was read immediately resolved to stand suit. When the quarter court met, on November 19, the course pursued by the ordinary and preparative courts which had preceded it was submitted and approved, and a grand committee was chosen to take charge of the defence of the company's interests before the King's Bench. A resolution that the expenses of the suit be paid from the general funds of the company was met by a petition from Alderman Johnson to the privy coun- cil, that the charges be borne by those members who opposed the suirrender of the charter, and to that end that all goods and public stock of the company which should be imported be sequestered at the custom house for the general uses of the plantation. To this, however, the council refused to assent.
In March, 1624, the royal commissioners, having reached Virginia, asked the governor and assembly to give them information concerning the defences of the colony, its rela- tions with the Indians, and its prospects in general. After reply had been made to these inquiries,^ the commissioners
1 Colonial Papers, 1674-1600, 64 ; Records of Va. Co. 1. 184 ; n. 478.
* See Va. Mag. of Hist. VIL 136, for the punishment of Edward Sharpless, acting secretary of the colony, for delivering papers of the governor, council, and boxgeases to the commissioners without authority so to do. VOL, in— «
50 IMPERIAL CONTROL
PART presented a form which they wished the members of the ^' assembly to subscribe. It expressed gratitude to the king for his care of the colony and willingness that the old char- ter should be revoked and a new one given. The governor and assembly replied that they conceived the resolve of the king to change the government proceeded from misinforma- tion, which they hoped might be removed. They would consent to the surrender of the patent when required so to do by the proper authorities. They also wished to know whether the commissioners were authorized to demand that the declaration which had been presented should be sub- scribed. The commissioners confessed that they had no such authority, but made the proposal " by way of counsel for the good of the plantation." In a letter to the privy council the governor and assembly said that they saw no prospect of ruin if government by the company was continued. They had no accusation to bring against those who had managed it since Sir Thomas Smith's time. The slavery they then suffered had since been converted into freedom. Had it not been for the massacre, there would have been no reason to complain of the condition of the colony. But if they were to be placed under the immediate control of the crown, they begged that the assembly might be retained. In July, 1624, a long ^ petition was sent by Governor Wyatt and the assembly to the king, in which the evils suffered by the colonists during the administration of Sir Thomas Smith were fully set forth and contrasted with the freedom and prosperity which, it was claimed, had succeeded it. They prayed, that if the government was to be changed, they might not fall into the hands of Sir Thomas Smith or his confidants.
These utterances conclusively proved, if such proof was necessary, that the administration of the province under Sandys and Southampton had been satisfactory to the rul- ing body of the colonists, and that Johnson and his friends could get no comfort from that quarter. But this made no difference with the result, for, when the plans of the government were matured, the commissioners were ordered
1 Col. Papers, 1574-1660, 66-68.
DISSOLUTION OF THE VIRGINIA COMPANY 61
to return the papers of the company, the pretence of an in- chap. vestigation ceased, and the case was prepared for trial before ^ ^^• the King's Bench.
While the company was struggling with the English ex- ecutive for existence, the parliament which impeached Lord Treasurer Middlesex and passed the act against monopolies was in session. It was believed that the house of Commons could be induced to actively support the cause of the com- pany, a cause which had so much in common with its own. For this reason Nicholas Ferrar, in April, 1624, drafted a petition^ for a hearing before the house, which, when ap- proved by the company, was sent to the Commons. It was received and a select committee was appointed to sit in the Star Chamber and hear testimony bearing on the company's case. Preparation was made for a full presentation of facts and arguments by representatives of the company, and such as would bear with special weight against Middlesex and Sir Nathaniel Rich. But when the king heard that the Commons were about to investigate the charges, he forbade them to proceed,^ saying that such matters were the special business of the council. The house yielded, though with expressions of discontent, and thus ended one of the earliest efforts to draw parliament actively into the work of colonial administration.
Judgment was rendered in the suit against the company by Sir James Ley, Chief Justice of King's Bench, in Trinity Term (May and June), 1624. It was to the effect that the plea of Nicholas Ferrar and the attorneys of the company was not sufficient to preclude the king from declaring that their privileges had been usurped. They were judged to have been convicted of said usurpation and — in the words of the decree — the "said privileges taken and seized into the hands of the king and the said N. Ferrar and others shall not intermeddle but from use and claim of the same
1 Col. Papers, 60-62 ; and Recs. of Va. Co. IL 626, 628, 537; Neill, 415. Captain John Bargrave also petitioned the Commons about the abuses of Sir Thomas Smithes administration. The petition was heard before the com- mittee of grievances, and a reply was presented by Smith and Johnson.
3 State Papers, Dom. May 6, 1024.
62 IMPERIAL CONTROL
PART shall be excluded. . . ."^ So far as the judgment and other entries on the record indicate, no attempt was made by the presentation of evidence on either side to prove or dis- prove the allegations of the government. The judgment simply rehearses the pro forma charges in the information and pronounces them sufficient to justify the forfeiture of the franchise. The impression given is that the king was so sure of his case and of his judge that more than this was not deemed necessary.
The effect of an adverse judgment under a writ of quo warranto was not to cancel the charter, but to restore the liberties which existed under it into the hands of the king.' This is probably the reason why the charter does not appear as cancelled or vacated on the Patent Roll.* Under that condition it was quite possible that the patent might again be granted with such modifications as should appear wise to the king and his advisers. A result such as this was re- garded by both parties at the time as possible. The sup- porters of Sandys and the Ferrars desired that the new grant should be modelled on the old — but with the removal of its imperfections — and that it should be confirmed by act of parliament. As will appear, the discussion of a possible reissue of the charter was prolonged well into the next period; but the decisive step was never taken, and Virginia passed the remainder of its existence as a colony under the forms of a royal province. Although, because of its place of residence, the dissolution of the Virginia company was
1 Coram Rege Roll, Court of King's Bench, No. 1528, 2l8t James I, Michaelmas Term. For the communication of the record of the qito loar- ranto proceedings I am indebted to Miss Susan M. Kingsbury, who discovered the document in the Public Record Office in London.
3 Argument of Sawyer, in case of King vs. City of London, Howell, State Trials, VIIL 1147 et seq. ; Kyd, On Corporations, II. 407.
* Brown, First Republic, 603. In one of the papers accompanying Clai- borne's Petition, Md. Archives, Council Proceedings, 1667-1688, 176, is a statement that ^*for manie years after noe Judgment [was] entered and to this time [1676] not vacated upon the Record in the office of the Rolls, whereby some that sought to overthrow the Lord Baltimore's Patent for Mary- land in the beginning of Parliament in Anno 1640 took out the Virginia Patten t againe under the broad seale of England.** Of the truth of the last improbable statement there is no proof which at present is available.
DISSOLUTION OP THE VIRGINIA COMPANY 68
more closely connected with English than American history, CHAP. yet it marked the first step in that long process by which ^ ^^ the crown continued to resume the authority over coloniza- tion which at the outset it had granted to individuals or corporations. In the event itself we may well consider that the company was treated summarily and with scant justice. But the process of development which was begun by its dis- solution was a natural one, though it marked the end of the romantic period of Virginia history and removed from connection with that province some of the most attractive personalities who ever interested themselves in American colonization.
CHAPTER III
RELATIONS BBTWBBN THE ENGLISH GOVERNMENT AND MASSACHUSETTS PRIOR TO THE BEGINNING OF THE GREAT CIVIL WAR
It is clear that the dissolution of the Virginia company was in large measure the result of the attitude of political opposition which those who directed its affairs between 1619 and 1624 maintained toward the king. It was a minor phase in the great struggle which was then in progress between the Stuarts, with their autocratic ideals, and the growing body of Englishmen who looked to an invigorated parliament for an assertion of the ancient liberties of the nation and the maintenance of a system of guarantied rights. Puritanism contributed much toward the growth of that national senti- ment which expressed itself in the demands of the parlia- mentarians, but very many who were not Puritans in the technical sense gave evidence of possessing their spirit and contributed greatly toward the strength of the common movement. Such men were Sir Edwin Sandys and the Ferrars, with others also who shared their labors and plans in the councils of the Virginia company. The sympathy be- tween that company and the Puritans who settled Plymouth and Massachusetts is clearly evident, and their enterprises, though amid great diversity, sprang from motives which were in some ways related.
But if the leaders in the Virginia company had shown irri- tation, combined with tendencies toward independence and self government, the Massachusetts company and colony had exhibited all these in a much higher degree. Massachusetts, by its very organization, to say nothing of the spirit by which it was animated, had practically declared independence at the very outset. It boldly made its challenge and awaited the result. If James I had found it necessary to restrain the ambi- tions of parliamentarians in the Virginia company, it would
64
ENGLISH GOVERNMENT AND MASSACHUSETTS 55
seem inevitable that Charles I should presently inquire into CHAP the use which men who in fact were already Puritan dissent- ^^ ers were making of the charter which he had granted them. But as these patentees had removed with their charter into their American colony and were themselves directly adminis- tering its affairs, the issue must naturally be taken on ques- tions which were more purely colonial than those that arose between the king and the Virginia company. This must be a controversy between the king and men who were actively col- onists, residents in America, and not with English noblemen and merchants who were interested in colonization. Press- ure, therefore, must be applied under somewhat different con- ditions in the one case from those which existed in the other.
The theories held by the Stuarts concerning government naturally led them to favor, at least ostensibly, a system of strong executive control over the colonies. Such was the policy of James I, while Charles I, at the beginning of his reign, made formal announcement that he should follow a similar course not only in reference to Virginia, but toward the other colonies as well. " Our full resolution is," he de- clared in the proclamation^ of May 13, 1625, concerning Virginia, " that there may be one uniform Course of Govern- ment in and through all our whole Monarchy ; That the Government of the CoUorffe of Virginia shall immediately depend upon Ourself, and not be commytted to aiilSb Com- pany, or Corporation, to whome it may be proper ^40 trust Matters of Trade and Commerce, but cannot be fitt or safe to communicate the ordering of State Affairs be they of never soe meane Consequence."
Had the policy thus outlined been consistently pursued, corporations would never again have been intrusted with powers of government. It is possible that proprietary grants might have been made; but the strictly logical outcome of the policy would have been a system of royal provinces. Virginia had now reached the form which best suited the purposes of the English executive. The king had thus early expressed his preference for that form, and all his successors, togfether with the officials who served them, expressed their 1 Bymer, Foedera, XVHL ; Hazard, Hist. Colls. L 204.
56 IMPERIAL CONTROL
PART substantial agreement with him in that preference. But, as we know, the policy dictated by that view was far from being followed. And indeed it could not be followed, for individual initiative and resources were indispensable to the founding of colonies, while court favoritism accounts for the rest. Within four years after the Stuart monarch had pro- claimed his dislike of colonial corporations, he created one on the petition of men who, though relatively obscure, were his determined political opponents, and this was to have a more remarkable career than any similar body in that cen- tury. Three years later he gave away to one who had been a favorite minister a principality, and that almost without express condition. The same policy was followed on a much larger scale by his son during the twenty or more years which followed the Restoration.
But underneath and behind these exhibitions of royal favor and proofs of court influence which followed one another in such long succession, appears the tendency which was set forth in the royal proclamation of May, 1625. It was the t^adpnp.y toward the maintenance of atnV.t ftyft^n, tivft nnntrni nvAr fhft nnlnniAq, through officials of royal ap- pointment and directed by a policy which had primary, though not exclusive, reference to the interests of the mother country. It had first manifested itself in the relations be- tween James I. and Virginia. Its second manifestation arose from the desire of the English officials to correct the error which, when viewed from their standpoint, seemed to have been made by the ill-considered grant of Massachusetts.
The consequences of that grant and of the use which had been made of it by the removal of the governing body of the Massachusetts company into the colony, were gradually re- vealed to the authorities in England. The territorial claims of the Gorges family and of John Mason had been infringed by the grant, though in its original form the patent had been issued by the New England council. The grant which had been made to Robert Gorges had been wholly included within its bounds, as was also a part of the territory called Mariana for which Mason had procured an indenture from the council. Years after Sir Ferdinando Gorges wrote in his
ENGLISH GOVBBNMBNT AND MASSACHUSETTS 57
Brief e Narratum ^ that, when the Earl of Warwick, who on CHAP, this, as on other occasions, acted as patron of the Puritans ^ ^^ of Massachusetts and Plymouth, requested his consent to the issue of the patent to Sir Henry Roswell and his associates, he gave it, "so far forth as it might not be prejudicial!" to the interests of his son, Robert Gorges. But, whatever may have been the cause, those interests were in no way regarded. In these conflicting territorial claims, as well as in the antagonism between Anglican and Puritan, loyalist and parliamentarian, originated the controversy between Massachusetts and the Gorges-Mason interests both in Eng- land and New England. Gorges had sufficient influence, though it was prudently exercised, to materially advance at court not only his own cause, but that of other com-* plainants than himself. Such complainants, some of them in fact malcontents, were not slow in appearing.
In describing the earliest essays of the Massachusetts magistrates in the administration of criminal justice, reference was made to the cases of Thomas Morton and Philip Ratcliff. Both were sent back to England, the latter suffering a punish- ment of great severity in the colony. Ratcliff's offence was cuigry denunciation of the magistrates and church at Salem. Morton, though his sentence recited only certain trivial offences which he was charged with having committed tow- ard the Indians, was really banished because he was regarded as an incongruous element within the colony, one who woulc} never adapt himself to a Puritan environment. Previous to the arrival of Winthrop and his colonists, Morton had trafficked in firearms with the Indians, and had refused to submit to the rules of the company. Both he and the set- tlement with which he was connected had been disorderly.
The case of Sir Christopher Gardiner, the third individual against whom the magistrates felt it necessary to protect themselves and the colony, was different. He was a widely ^
1 Baxter, Gorges, n. 61, 69.
< Winthrop, Journal, I. 66, 68 ; Dudley's Letter to the Countess of Lin- coln, in Toung*s Chronicles of Massachusetts, 333; Bradford, History Plymouth Plantation, Edition of 1899, 862 ; Adams, Three Episodes of Maasachuaetts History, 261.
58 IMPERIAL CONTROL
PART travelled man of some culture, possibly also of high con- ^' nection, certainly of loose morals, who appeared in Massa- chusetts in 1630, about a month before the arrival of Win- throp. He brought with him a servant or two, and a " comely yonge woman," whom he called his cousin, but who was thought to be his mistress. At first he seemed to intend a permanent residence in the colony, and even offered to join one of its churches. He built a dwelling of some kind, prob- ably on the Neponset, south of Boston, and may have lived there for a brief time. But presently information came that he already had two wives whom he had deserted in Europe, and both of whom, though for opposite reasons, were seek- ing to ascertain his whereabouts. Letters from both these women reached Governor Winthrop, and on the strength of the charges of bigamy, desertion, theft, and general ill living which they contained, the court at Boston ordered Gardiner's arrest and deportation to England by a ship which was about to sail. But he, hearing in advance of their intent, escaped alone into the forest, where, in the neighborhood of Taunton river, he wandered about for nearly a month, when he was captured by the Indians and brought to Plymouth. Thence he was taken back to Massachusetts. His companion, Mary Grove, had in the meantime been examined by the magis- trates, but little information of importance had been elicited from her. Though for a time after his return Gardiner was kept under close watch, there was no intention of treating him with severity.
In June, 1631, a boat from Piscataqua brought, under cover to Winthrop, a package of letters addressed to Sir Christopher Gardiner. Acting as guardian of the community and following the practices of the times in the same way as Bradford had done in the case of Rev. John Lyford at Ply- mouth, Winthrop opened the letters. They were from Sir Ferdinando Gorges, and were addressed to Gardiner as his agent. A letter from Gorges to Morton was also in the package. By both these letters it appeared that Gorges " had some secret design to recover his pretended right " to the soil of Massachusetts. The errand on which Gardiner had come to New England was now revealed. He was the
XNGLI8H GOVBBNMEJNT AND MASSACHUSETTS 59
agent of Sir Ferdinando Gorges. It would therefore natu- cHAP. rally occur to the governor that to send such a person back ^ ^^ to England, would be playing into the hands of the enemies of Massachusetts. Probably for that reason he was treated with courtesy so long as he remained in the colony, and at his departure was ^^ dismissed in peace. " From Massachusetts he accompanied Mary Grove and Thomas Purchase, to whom she had recently been married, to their home near the modem Brunswick, Maine. There Gardiner remained for about a year and then returned to England.
Morton, Ratcliff, and Gardiner were now in England, armed with complaints against Massachusetts, and ready to cooperate with Gorges and Mason in efforts to procure the recall of its charter. The severity of Massachusetts had sent two of them thither, and of the two Morton's representa- tions in particular were sure to enlist the support of the active members of the New England council.
On December 19, 1632, Gardiner, Morton, and Ratcliff, supported by Gorges and Mason, petitioned^ the king in council. The petition has been lost, but we are told that it contained many charges against Massachusetts. The leaders of the colony were accused of having renounced allegiance to England and of an intention to rebel. It was affirmed that they had separated from both the laws and Church of Eng- land, and that the ministers and people continually railed against the government, church, and bishops of the mother country. We may also suppose that the harsh usage to which the petitioners had been subjected in the colony was referred to. The petition was evidently an indictment of the main features of Massachusetts policy, stated in harsh and exag- gerated terms and intended to convey the impression that the policy was wholly illegal, that it was leading to disorder and would end in rebellion. It was the first, but by no means the last, manifesto of this kind the influence of which upon the king and council Massachusetts was forced, if possible, to counteract. To do this proved to be easy in this case, though as time went on it came to be different. The difficulty arose
1 Bradford, 366 ; Hutchinaon Papers, Prince Society, L 67 ; Winthrop, L 119, 122, 126, 127.
60 IMPERIAL CONTROL
PART from the fact that the charges against Massachusetts, though • J exaggerated, contained a considerable element of truth. It could with truth be stated that independency both in church and state, though in a somewhat disguised form, was the ideal of the leaders ; that, so far as they dared, and by all means in their power they would contend for this and defend it if ever it should be really attacked.
The petition was followed by a hearing before a committee of the privy council. Emanuel Downing,^ a brother-in-law of Governor Winthrop, Captain Thomas Wiggin of Piscat- aqua, members of the company, and friends of Massachusetts, some of whom had recently returned from the colony, appeared in its defence, and for the time the efforts of Gorges and his associates were defeated. Most of the charges were denied, and others, it was found, could not be proven except by witnesses from the colony itself. A reply to the charges of the petitioners concerning the attitude of Massachusetts toward the English Church was prepared and sent by the governor and assistants, but it must have arrived too late to affect the decision. It was also found that various enter- prises which the adventurers had in hand, involving the despatch of colonists, food, and merchandise to America, would be defeated if the colony now fell under suspicion. For these reasons the council declared that, appearances being so fair and hopes so great, the adventurers might rest assured, if the terms of the charter and the purposes expressed at the time it was gpranted were fulfilled, the king would not only maintain their privileges but add what might further tend to the good government and prosperity of the colonists. The king was reported to have said that he would have those punished who abused the governor and plantation. So
1 Letters from Downing to Secretary Coke, in the Coke Papers (12th Beport of the British Hist. Mss. Comm. App. Ft I. Vol. IL pp. 38, 64), show that he was not only defending Massachusetts against the territorial claim of Gorges, but against the charge that it would renounce its allegiance to Eng- land and engage in trade with foreigners. He suggested that their patent be enlarged a little to the north, where the best furs and timber were, and in the spirit with which he warned the government against the earliest encroach- ments of the Dutch on English trade anticipated the attitude of his son^ George Downing, a generation later.
ENGLISH GOVBBNMBNT AND MASSACHUSBTTS 61
gratified were the authorities of Massachusetts when they CHAP, heard of the result, that Winthrop, through the governor of Plymouth, asked that colony to join in a day of thanks- giving for a merciful deliverance *^out of so desperate a danger/' ^
With the rejection of this petition Sir Christopher Gardiner disappears from view. Ratcliff at a later time gave testimony again before the council. Morton continued, however, to be an active and persistent foe of Massachusetts and aided its enemies in their plans whenever it was possible. As the period of personal government on which Charles I had entered progressed, it was accompanied with the more general and stringent execution of Laud's policy of repressing dissent. His appointment as archbishop in 1633, combined with the elevation of Neile to the see of York, made certain the triumph of that policy for the time being. The realization of this fact by the Puritans was followed by their emigration in large numbers to New England. The population of Massachusetts rapidly increased, and the colonies of Connecticut and New Haven were founded. English noblemen even began seriously to consider plans of removal. The repressive policy of the English govern- ment at home was rapidly making the New England experi- ment a success.
All this very seriously affected the interests of Gorges and the New England council. The territory north of the fortieth degree of latitude, which they for nearly fifteen years had been vainly endeavoring to colonize, was being settled, but by colonists who to them were unwelcome. These colonists did not recognize the title of the council to the region in question, and its agents they supplanted or drove out. They had also proved too strong for Gorges before the privy council. But there, if anywhere, the battle must be won. Gorges, therefore, renewed his efforts in that quarter and this time with the assistance of Archbishop Laud. That primate had never before turned his attention to the colonies, but, becoming impressed with the fact that they might be a lef age for the Puritans, he was ready at once to extend his
1 Bradford, 366.
62 IMPERIAL CONTROL
PART repressive measures thither also. The enforcement of con- ^^' J formity, which he was already attempting in Scotland and Ireland, might be tried in the colonies as well. In connec- tion with the desire thus begotten in the mind of Laud, to suppress dissent even in those remote regions, the monarchi- cal idea of colonial administration appears again in the fore- ground. By utilizing these forces Gorges was able to win what for a time appeared to be a triumph over his foes.
In February, 1634, in consequence of the reports that many persons were leaving the kingdom because of religious discontent, eleven ships bound for New England were stopped by order of the privy council. Before the end of the month, however, though not until the passengers had taken the oath of allegiance and promised to use the Book of Common Prayer in worship during the voyage, the ships were allowed to proceed.^ If Morton's statement in his letter to Jeffery ^ is true, an inquiry into the origin and provisions of the Massachusetts charter was soon after held before the privy council, Sir Richard Saltonstall and other patentees being present, and Morton and Ratcliff perhaps testifying again against the colony. The patent, it is said, was solemnly declared to be void, and the king took the matter into his own hands.
On April 28, 1634, as partly a result, we may suppose, ^ of this opinion, a royal commission ^ was issued appointing Archbishop Laud and eleven other privy councillors as a board of commissioners for trade and plantations. Among the members who were associated with the archbishop were Lord Keeper Coventry, the archbishop of York, the lord treas- urer, the Earl of Portland, the Earl of Manchester, who was lord privy seal. Earl Arundel, who was the marshal of Eng- land, with the Earl of Dorset and Lord Cottington, who held the other chief offices in the royal household, John Coke and
1 Colonial Papers, Feb. 4, 1634 ; Palfrey, I. 371 n.; Hazard, Hist. Colls. L 341. In Ya. Mag. of Hist. IX. 271, is a statement by the customer of London which shows what the administrative practice of the officials of the Treasury at this period was in regard to granting passes to persons leaving the kingdom and requiring from them the oaths of allegiance and supremacy.
« Winthrop, II, 233.
• Hazard, Hist. Colls. L 344 ; Hutchinson, Hist, of Mass. I. App. 440.
ENGLISH GOVERNMENT AND MASSACHUSETTS 63
Francis Windebank, who were secretaries of state. It thus CHAP.
• III
appears that many of the leading ministers of the king had
seats upon this board. It consisted wholly of privy council- lors. Very large powers were intrusted to the new board of commissioners, and, though relations with New England were the immediate occasion of its appointment, its powers were to be exercised over all the colonies alike. They were to have " power of protection and government " over all exist- ing and prospective colonies; to make, with the royal assent, ^^laws, ordinances, and constitutions'' both concerning the public affairs of the colonies, as about the interests and tes of individuals therein. They were to secure mainten- ance for the colonial clergy by tithes and oblations, distribute the same and regulate ^^all other matters ecclesiastical." They were given power to punish offenders even with death. They might also examine into the conduct of governors, call them to account for violation of ordinances, depose and other- wise punish them. They were to establish and regulate courts and appoint magistrates. They were to act as a court of appeal and bring before themselves in England any gov- ernor or officer who should usurp another's authority, wrong another, fail to suppress rebels or to obey the king's com- mands. Through them letters patent were to be issued for the founding of new colonies, and orders to do all other things which should be necessary for the government and protection of the colonies. In 1638 and 1639 we find a sub- committee associated with this board, but this was probably a group of experts temporarily brought together to advise concerning Virginia affairs and matters of revenue.^
On February 21, 1634, more than two months before the appointment of this commission, the privy council had ordered Mr. Cradock, then before the board, to have the royal charter of Massachusetts produced.^ This command Cradock transmitted to New England. When the letter arrived, Winthrop, whose popularity had temporarily waned, had been succeeded by Dudley in the governorship. The
1 Col. Papers, 1674-1660, 281 et seq., 301 ; Va. Mag. of Hist., X, 428 ; XI, 178, 285 ; XII, 394.
s Hazard, I. 841 ; Winthrop, 1, 161, 163.
64 IMPBBIAL CONTBOL
j
I PART message, which was regarded as unofficial, was submitted to
I V ' J the assistants in July, who after long consideration adopted
the policy of delay and evasion, a course which the colony was to pursue in similar relations with the crown throughout the future. In reply to Cradock, it was stated that it would be impossible to send the charter without the consent of the general court, a session of which would be held in the following September. Edward Winslow of Plymouth was about to sail for England and to him this reply was intrusted. Winslow went as agent ^ for his colony, and incidentally to serve the larger cause of Massachusetts, thus helping to bring the important institution of the colonial agency clearly into existence. His chief errands on behalf of Plymouth were to explain to Lord Say and his partners the share which /Plymouth men had had in the death of Hocking near their / trading post on the Kennebec river, and to procure the aid of the home government in restraint of the operations of the Dutch on the Connecticut river, and of the French on the northeast, they having recently destroyed the trading post which Plymouth had established on the Penobscot river. Either diplomatic interposition by the English government concerning these matters was desired, or special authority which should legalize any combined effort that the New England colonies might make to defend themselves against all foreign enemies. An errand like this the Massachusetts authorities would never have undertaken or approved, and the fact that Plymouth should undertake it shows how much more conciliatory and submissive was its attitude tow- ard the home government than was that of Massachusetts. Though Winslow performed the duties of his mission with ability, he played into the hands of those who were laboring to destroy Puritan independence in New England and him- self temporarily suffered in consequence.
When he arrived in England and began prosecuting his errand before the plantation board Winslow, though at first succeeding well, soon found himself opposed by the Gorges and Mason influence and by the archbishop of Canterbury.^ The plan that, upon the recall of the Massachusetts charter,
1 Bradford, 384, 389 et $eq. > Bradford, 391.
ENGLISH GOVEBNMENT AND MASSACHUSETTS 65
Gorges should be appointed governor of New England, was CHAP, already formed, and Winslow's suggestion that the existing colonies should be empowered to resist the Dutch and French at their own expense was inconsistent with the scheme of Gorges, as well as with that of Laud to enforce uniform- ity in the colonies. Thereupon, when Winslow seemed on the point of succeeding, Morton was procured to enter further complaints against the New Englanders. After Winslow had replied to him, the archbishop began to ask questions — some of which were suggested by Morton's statements — about the extent to which the canons of the Church were violated in Plymouth. Winslow confessed that occasionally, when they lacked a pastor, he, though a layman, had officiated publicly in church. He also admitted that when they were without a minister, he had performed the marriage ceremony, and went even so far as to defend civil marriage before their lordships as not inconsistent with Scripture. ^^ For these things," says Bradford in his account of the episode, " ye bishop, by vemente importunity, gott ye bord at last to consente to his committemente ; so he was comited to ye Fleete, and lay there 17 weeks, or ther aboute, before he could gett to be released. And this was ye end of this petition, and this business.*' The last statement of the Plymouth historian is not quite true, for from his prison Winslow addressed a petition to the privy council, in which^ while again admitting the truth of what he had pre- viously stated about his own conduct, he justified it as neces- sary, and defended the Plymouth people against the charge of being factious, while he exposed the bad character of Morton and of the other assailants of Massachusetts.^
Meantime, within the New England council, and beginning as early as February, 1634, preparations^ were in progress for the surrender of its charter, so that the way might be cleared for the appointment of a governor general of New England. On February 8, a meeting of the council at Lord
^ This petition is wrongly entered in the Calendar of State Papers under November, 1032 ; Winthrop, I. 206.
> Recorda of the Council for New England, in Proceedings of Am. Antiq. Soc. 1867, p. 114 et $eq.
TOL. lU — »
66 IMPERIAL GONTBOL
PART Gorges' house, which was attended both by Sir Ferdinando and by Captain John Mason, agreed upon a redivision of the sea coast from the fortieth degree of latitude to Nova Scotia. This was substantially a repetition of the attempted division by lot which occurred at Greenwich in 1623, but which had never been confirmed or carried into execution. The terri- tory was now divided into eight sections and distributed among the members of the council. Mason receiving New Hampshire and the section between Naumkeag and the Merrimac river. Gorges receiving the region which was soon to be known as the province of Maine. Deeds of feoff- ment were made out for the proprietors of the several sections.
A formal surrender of the charter of the New England council to the king was drawn on April 28, though it was not executed until the 7th of June. In this the failure of its enterprise thus far was acknowledged, and the cause was found in the alleged surreptitious^ grant to Massachusetts and its confirmation by the king which was obtained with- out the knowledge of the council. " By which means they," the document continued, ^^made themselves a free People, . . . whereby they did rend in pieces ye first foundation of the building, and so framed into themselves both new laws and new consceipts of Religion and forms of ecclesiasticall and temporall Orders and Government, punishing divers that would not approve thereof, some by whipping, others by burning their houses over their heads, and some by banishing and the like." The complaints which arose from these events the council had been called upon to redress. It had referred the petitions to the king. Its members had been called be- fore the privy council, but there had disclaimed all share in the evils. They had then referred the whole matter to the king and his ministers, and of their resolve to take it fully into their hands this surrender of the charter was the first and natural result.
The surrender of the charter was duly accepted by the king, and he announced his resolve to appoint Sir Ferdi- nando Gorges governor general of New England, and to give ^ Records of the Coancll for New England, ibid, 124.
ENGLISH 60VBBNMENT AND MASSACHUSETTS 67
him adequate royal support. One of the provinces should CHAP, be allotted to him for his maintenance, while provision was y ^
made for the succession of his office. These steps having been taken, the king was petitioned to order the attorney general to prepare patents for the eight lords among whom the territory had been divided by lot, that thereby fully ^^l*^^^^"^^ organized proprietary provinces might be formed within the governor generalship. On May 6, 1635, Thomas Morton received an appointment from the council as solicitor for the confirmation of the deeds under the great seal, as also to prosecute a suit at law for the repeal of the Massachusetts patent. But the confirmation of the deeds was evidently beset with delays, for, on November 26, an order was issued that the passing of the patents should be expedited with all conveniency. The decisive steps, however, which would make them effective patents seem never to have been taken. While the events which have now been outlined were oc- curring in England, Massachusetts showed the spirit in which she intended to meet the attack. The general court, during the session of September, 1634,^ instead of considering the order for the return of the charter, took the first decisive steps toward creating a system of defence within the colony. -^ Authority was bestowed on the assistants to impress labor- ers for public works. Defences on Castle island and at Oharlestown and Dorchester were ordered to be built, and a committee was appointed to take charge of them. A com- mittee was also appointed to provide ammunition, and another to take general charge of any war which might occur within a year. Arms were to be distributed and train- ings held. With equal zeal the court legislated against new and extravagant fashions in dress, an enactment which to the Puritan mind fitly accompanied strenuous preparations for defence. In the November which followed this im- portant session of the general court, John Endicott at Salem vented his feelings on the situation by cutting the cross from the English colors. This act savored more of sedition than any event which had yet occurred, and the magistrates feared that such an interpretation would be put upon it in
^ Col. BeoB. 1. 123 et «eg.
68 IMPERIAL CONTBOL
PART England ; ^ but some delay ensued before he was punished by exclusion from oflBce for one year. So strong, however, did the feeling against the colors seem to be that all the ensigns were ordered to be laid aside.
In January, 1635,^ the governor and assistants submitted to the ministers the question, what should be done if a gen- eral governor should be sent from England; and the unani- mous reply was that, if one were sent, he ought not to be received, but the colony, if able, should defend its lawful possessions. Later a beacon was ordered to be set on Sentry Hill in Boston, while on a day early in April a false alarm of the approach of two ships quickly brought together the train bands of Boston and the adjacent towns. In this state of preparedness the colony awaited events in Eng- land.
Gorges, on the other hand, was striving to secure means to take him to New England. It was his expedition, if any, which the outlook on Beacon Hill would some day see ap- proaching. But it never came. The English government was busy with ship money and other devices for supplying the exchequer independently of appropriations by parliament. It had neither money nor soldiers with which to support Gorges' enterprise. The archbishop could fulminate de- crees and imprison luckless New England Puritans, if they came within the realm; but more, it was proved, he was unable to do. Gorges soon found that the elements of his problem were much the same now as they had ever been. He could command only his own resources, and they were painfully inadequate. Never very great, they had been seri- ously reduced by his previous experiments in colonization. An effort was made to fit out a single vessel to bear the governor general across the sea, but that utterly failed. Thus Gorges' direct share in the great scheme of reducing New England to the condition of a royal province ended in complete failure. Like all his plans, it was large in concep- tion but feeble in execution. In the light of these facts, the military preparations of Massachusetts do not appear so ab- surdly inadequate as they would if they had been directed
1 Winthrop, 1. 179, 186, 188. « Ibid. 183.
ENGLISH (GOVERNMENT AND MASSACHUSETTS 69
against a great European power which was in a condition CHAP, to strike the little colony.
But this was not the end of the episode. The plan of Gorges and of the officials who were supporting him in- volved the revocation of the Massachusetts charter. Only by this step could the way be legally cleared for the estab- lishment of the royal province. Thomas Morton had been retained to aid in prosecuting this suit. It was begun in June, 1635, by the attorney general filing before the King's Bench an information in the nature of a writ of quo warranto ..^ against the Massachusetts company. The charge was that ^
their charter was void ab initio and therefore that the com- pany should be dissolved. As this case, especially when compared with that of the Virginia Company, illustrates very clearly the way in which the removal of a corporation across the sea affected the exercise of judicial control over it, it deserves somewhat extended notice.
The information^ filed by the attorney general in this instance was directed not against the corporation itself, but against its members, whether resident in England or New England. It cited the main provisions of the charter, and declared that the said franchises and liberties had been usurped in contempt of his majesty the king. At this point appeared the significance, from the standpoint of judi- cial control, of the removal of the Massachusetts company into New England. The writ issued in pursuance of the information was not served upon the officers and members of the corporation who were resident in New England, and probably could not have been served and a return secured within the specified legal time. The information was filed in Trinity Term of 1635 (11 Charles I) and the trial was held in Michaelmas Term of the same year. At the trial, which was before the King's Bench, fourteen members of the company appeared and pleaded that they had not usurped any of the said liberties and did not claim them.^ There-
1 Pabllcations of the Prince Society, Hatchinson Papers, L 114.
> 4 Mass. Hist. Colls. VL 6S. A statement in a letter from Emanuel Downing to Rev. Hugh Peters throws light on this transaction. Writing, in 1640 from Salem, of the quo warranto he said, **mo6t of them that ap-
70 IMPERIAL CONTROL
PART upon in each case it was decreed by the court that the indi- ^^' . vidual concerned " shall not for the future intermeddle with any of the liberties, privileges or franchises aforesaid, but shall be forever excluded from all use and claime of the same and every of them." ^ Matthew Cradock made default and was convicted of the usurpation charged. It was de- creed that the liberties, so far as Cradock possessed them, should be seized into the king's hands, that he should be excluded from the further use of them and should be held to answer for the usurpation. The record closed with the statement that 'Hhe rest of the patentees stood outlawed and noe judgment entered up against them."
The effect of this action on the part of King's Bench seems to have been to exclude from the company such of its mem- bers as were accessible and appeared, while the corporation itself remained intact. The governing body of the company defaulted through non-appearance, and the record states that they stood outlawed. But it also states that no judgment was entered up against them. We have no record that steps were taken to complete the process of outlawry, which would have required the issue of several additional writs, and those di- rected toward the execution of a judgment already pronounced and recorded.2 Had it not been for the legal difficulty con- nected with the service of the writ, it is altogether probable that the Massachusetts company would have shared the fate of the Virginia company, and the way would then have been cleared for the governor generalship of Gorges, as soon as the New England council surrendered its charter. As it was, on three' occasions between the summer of 1631 and the spring of 1639, authoritative information came to Massachusetts from the
peared I did advise to disclayme, which they might safely doe, being not sworne Magistrats to governe according to the patent ; and those Magistrats which doe governe among us being the only parties to the patent were never summoned to appear. Therefore if there be a Judgement given agauist the patent, its false and erroneous and ought to be reversed with a motion in King's Bench. ..."
^ The fact that this was the decree in the cases of Sir Henry Roswell and Sir John Young is not expressly stated ; but there is no reason for supposing that they received different treatment from the others.
3 Kyd, On Corporations. * Winthrop, I. 269, 323, 369.
ENGLISH GOVERNMENT AND MASSACHUSETTS 71
commissioners of foreign plantations in England, that the CHAP, magistrates and others had no legal right to govern the col- ony, that a judgment had passed against the charter and that it should be sent home. To one of these messages a reply was sent excusing themselves for not transmitting the charter lest it might be interpreted as its surrender. Of the last peremp- tory demand no notice was taken. That the government, had the corporation been resident in England, would have allowed itself to be balked in this way is hardly credible, even though it were at the time on the eve of a civil war. But the corporation stood, and, when the Restoration came, was treated as in full legal existence.
The attitude which Massachusetts maintained toward the obligations of allegiance and the degree of its isolation as a colony are illustrated by a discussion in 1636 concerning the necessity of flying the English colors on the fort at Castle island.^ A mate on an English ship had charged them with being rebels because they did not keep the king's flag flying on the fort. The controversy which followed revealed the fact that there was no English flag in the colony. The seamen offered them one. But the magistrates scrupled to receive it, because " we were fully persuaded that the cross in the ensign was idolatrous." But after consulting Cotton and others, it was decided that, as the fort was the king's and maintained in his name, ^^his own colors might be spread there." And it was done, though some of the magistrates, Winthrop among them, did not approve and would not join in the act.
1 Winthrop, L 223-226.
CHAPTER IV
BBOINNINOS OP ROYAL GOVERNMENT IN VIRGINIA
PART As has already been stated, the transition from a chartered • ^ colony to a royal province involved in every case the sub- stitution of royal officials for those of the proprietor, or for those who had been elected by the freemen of the colony. In other words, a royal executive took the place of an ex- ecutive which consisted of the king's grantee and of the officials whom that grantee had either appointed or elected. The province thenceforth stood in immediate, instead of mediate, relation to the crown. The territory within its bounds, so far as it had not already been granted to private parties, became again a part of the royal domain. Private rights, as they existed in the colony, were so guarantied that they were not diminished as the result of the transition. But the affairs of the province came in part to be managed by officials and servants of the king in England, while the administrative officers who resided in the province were royal appointees.
We are now concerned with the very beginnings of Eng- lish colonial administration, as applied to the province of Virginia. The forms and precedents by which it was in future to be guided were then in the initial stages of their development. And yet under the early Stuarts the official connection between Virginia and England was in some re- spects more intimate than at any later period, or than they were in the case of any other royal province. Communica- tions were regularly sent back and forth, filled with details, not only about official doings, but about the tobacco industry and other phases of social life. Instructions to the early governors abounded in requirements which of course would apply only to Virginia. In details of this kind the home
government took more direct interest than at later times.
72
BBGINKING8 OF BOYAL GOVERNMENT IN VIBOINIA 78
As colonies multiplied and their diverse interests demanded CHAP, consideration, control became generalized and details were left to be worked out more by merchants, planters, and local officials. Virginia then fell into its place among the rest. At the time of which we are speaking agents, as we shall see, were occasionally sent from Virginia to England. The acts of its assembly were sent to the privy council for its allow- ance.^ A few instances appear of civil suits in Virginia being heard in England, and of colonial cases coming at this period before the court of the lord high admiral in England;^ but suits of the latter class concerned other colonies even more than Virginia.'
Some of the earliest utterances of the crown upon the sub- ject of government in Virginia indicated a purpose to revive the system of 1606, retaining the patentees and leaving rights of trade in their hands, but revoking all rights of govern- ment.^ But the leaders of the majority in the old company were unable to reconcile themselves to anything but its res- toration, with all the powers which it possessed under the charters of 1609^ and 1612. This the colonists would at the time have preferred, for the recent administration of the province, on the whole, had been satisfactory to them. But the government, if it had ever intended to retain the pat- entees, soon abandoned such thought, and, in the famous proclamation of 1625, seemed to commit itself to the royal province as a form of organization.
In the case of Virginia the process of establishing royal government began before the judges had declared the charter of the company to be null and void. On July 5, 1624, under an act of council of the previous month, the king
1 Randolph Mas., Va. Hist Soc fol. 219, March, 1631.
> A suit between Bfartin and Bargrave over the poesession of cattle was pending In Chancery in 1025. Va. liCag. of Hist. VIL 132. There was also a suit orerPoontis's estate, bat it was probably not prosecated in England. Ibid. 184.
* Admiralty Court, Instance and Prize, Libel Files.
* See Discooise of the Old Company, Va. Mag. of Hist. L 904 e( $eq.
* See order in council of Jane 24, 1624, Calendar of Colonial Papers under that date : " His Majesty being resolved to renew a charter, with former privileges and amendment of former imperfections.*' Sir F. Nethersole in a letter to Carieton, July 3, 1624 (Colonial Papers) states the fact more directly.
74 IMPERIAL CONTROL
PART appointed a large commission,^ with Viscount Mande ville, Lord ^' , President of the Council at its head, to regulate the affairs of Virginia and give orders for its government. The com- mission consisted of ministers of state, the law officers of the crown, knights, clergymen, and merchants. It contained many who had been members of the company, but they were selected largely from the party of Smith and Johnson. Though its powers were large, it can hardly be considered as a predecessor of the later boards of trade and plantations, because its work was expressly confined to one colony. It rather involved a return to the arrangement of 1606. Au- thority was given the commission to take charge of the public property of the Virginia company and colony and to exercise the powers which had been conveyed to the company by royal charter. For these purposes it might consult both adventurers and planters. It was closely connected with the privy coun- cil, and was to act under instructions from that body and the king. The meetings of this commission were held weekly at the house of Sir Thomas Smith. There they made use of the records of the company, heard testimony concerning the condition and needs of Virginia, received applications from those who were going or sending thither, and consid- ered what policy it was best to pursue. Wyatt was temporarily continued in his office as governor, and with him was associ- ated a council consisting of Yeardley, Francis West, George Sandys, Ralph Hamor, Mathews, Peirsy, Claiborne, and others.*
The members of the old company were consulted concern- ing the best form of government for the province, and re- turned the reply to which reference has already been made. They took a pessimistic view of the situation and belittled the work of all except the Sandys-Southampton party. They insisted that the system which had just been brought to an end by the qtio warranto was the only true one. They re- ferred to one discouraging result which the establishment of
1 Va. Mag. of Hist. VH. 40 ; Colonial Papers, July, 1624 ; NelU, Vir- ginia Carolomm, 11.
' See proclamation, Rymer, XVn. 611. The substance of the commission is in Va. Mag. of Hist YIL 129.
BEGINNINGS OF BOYAL GOVERNMENT IN VIRGINIA 76
royal government was sure to have on Virginia. Large sums CHAP, had been expended by the company in aiding emigration to the province, in promoting industry there, in furnishing supplies and relieving distress. If the English government intended to continue this policy and to meet out of public revenues the expense which it entailed, it was most proper, said the writers ^ of the memorial, that the province should be administered through a royal council. But if, when royal government was established, all aid was withdrawn; if assistance to emigration ceased, and the plantation was left to support itself, both planters and adventurers would be discouraged, and many would abandon the enterprise. Though the temporary discouragement did not result so disastrously as the memorialists predicted, the substitution of government by the crown for government by the company threw the colonists more on their own resources.
At first the colonists, as well as the former adventurers, feared that they might suffer both in bodies and estates from the establishment of royal government. In July, 1624,^ the governor, council, and assembly sent by John Pountis, their agent, and vice admiral of Virginia, a petition to the king, en- treating that credit might not be given to the malicious impu- tations which had been circulated against the late government, or the statements believed that the condition of Virginia under the administration of Sir Thomas Smith had been a happy one. In order to show that the opposite was true they pre- sented an elaborate statement contrasting the oppressiveness of the government under Smith, and the sufferings of the colony at that time, with the liberality of the regime that followed and the progress which the colony had then made. Its prosperity, however, had been cut short by the massacre, which had ^^ almost defaced the beauty of the whole colony," and prevented the continuance of ^Hhose excellent works wherein they had made so fair a beginning." Famine had followed for a year, but severe blows had been inflicted on the savages, and it was hoped that they would be driven
1 Va. ICag. of HlEit L 804.
* Colonial Papers, July, 1024, June 16 (?), 1626 ; Hening, SUtates of yi^ ginia,L 128.
76 IMPERIAL CONTBOL
PART from the lower parts of the colony. The chief objects of ' J the petition were to pray the king not to deliver the prov- ince over again to Sir Thomas Smith and his associates, and to grant to Virginia and the Somers islands the monopoly of the importation of tobacco, ^^ not as an end to affect that contemptible weed, but as a present means to set up staple commodities."
Five months later ^ the governor and council were able to report that in a two days* battle a great victory had been won over the Pamunkeys and their confederates. Many of the Indians were slain and sufficient corn destroyed to keep four hundred men for a twelvemonth, and that with small loss to the English. The health of the colonists was good ; a plentiful harvest of corn had been gathered. In view of these facts it was possible for them to state, though probably with exaggeration, that the colony had ^^ worn out the scars of the massacre."
That their confidence was somewhat premature is indi- cated by a petition from the same source, which is supposed to have been sent the following June.* Acting on the sup- position that, because of the death of Mr. Pountis, the pre- vious petition had not been delivered, the governor, council, and assembly again express a fear that they are to be de- livered into the hands of Sir Thomas Smith. Their fears on this subject had been aroused by the information that the persons of whom they had so justly complained had been appointed members of the commission for regulating the affairs of the colony. The colonists had come through the winter with scanty supplies, and, because of what seemed to be the desperate state of the colony, some of the planters had resolved to return to England and petition for redress and protection. Lest the clamors of so many should be troublesome. Sir George Yeardley had been selected by the governor, council, and assembly to present their grievances, and a favorable hearing for him was solicited.
Yeardley, who was now returning as agent from Virginia, asked for a hearing before the privy council in October,
1 Colonial Papers, December 2, 1624. * Ibid, June 6 (?), 1626.
BEGINKIIffGS OP BOYAL GOVERNMENT IN VIBQINIA 77
1625.^ He referred to the distress which existed in the CHAP.
IV
colony because of lack of supplies, and to the discourage- ment which had been caused by the uncertainty as to the government. A supply of munitions, apparel, tools, and other commodities was what they first needed, and these should be sent at once. With this petition appears the earliest demand on the part of American colonists that the king should send troops to their relief. The former petition concerning tobacco was repeated, and in addition general freedom of trade was insisted upon and also the necessity of exempting staple commodities for a time from the collection of duties on their importation into England. The state of political feeling among the colonists was indicated by the request not only that those against whom they had com- plained should have no share in the government, but that by a new patent, confirmed by parliament, the possession of their estates should be guarantied to the colonists; also that the continuance of free general assemblies should be assured, and that the people should have a voice in the election of their officers.
In April and May * of the following year, additional com- munications were sent to England by the Virginia magistrates, repeating their requests concerning the tobacco trade, and stating that, if the plans for defence which were under dis- cussion were executed, four hundred men must be sent to the colony with engineers and full equipment and supplies. The plan included the building of a palisade for a. distance of six miles, between Martin's Hundred and Kiskiack, fur- nished at intervals with blockhouses. This, it was hoped, would secure from Indian attack a tract of 300,000 acres, where the principal settlements in the province lay, and thus insure its peaceful economic growth. For the construction of the palisade and guard houses X1200 in ready money would be needed, and their maintenance would cost XlOO a year. Forts and fortified towns must also be built and garri- soned, while the offensive war should be continued against
1 Colonial Papers, 1674-1660, 76.
* Ibid, The Important Letter of May 17, 1626, Is printed in full in Va. Mag. of Hist. n. 60.
78 IMPERIAL CONTBOL
PART the Indians. , Discovery on a large scale toward the South • y Sea should also be undertaken, and emigration encouraged to fill up the country. A public magazine should be main- tained, which adventurers would probably be found ready to furnish at twenty-five per cent profit, accepting tobacco in payment at 3«. per pound. " But the ground work of all," wrote Wyatt and his associates, " is that their bee a sufficient publique stock to goe through with soe greate a work, which wee cannot compute to bee lesse then £20,000 a yeare, certaine for some yeares; for by itt must bee maintained the Governer and counsell and other officers here, the forrest wonne and stockt with cattle, fortifications raysed, a running armye mainetayned, discoveries made by Sea and land, and all other things requisitt in soe mainefould a business." For a considerable part of this the governor and council looked to the home government.
Large plans of this nature might have appealed to Sandys, and under his leadership, if unopposed, there might have been some prospect of their realization. But to the govern- ment of Charles I, which was not only inherently weak but paralyzed by a conflict with parliament and consequent lack of supplies at home, it was useless to suggest such measures as this. At Whitehall they fell on deaf ears. Whether or not Sir George Yeardley secured a hearing before the council in the fall of 1625, what discussion went on, and what was its result, we are not informed. But that any concession was made which involved expenditure or special sacrifice on the part of the home government is not probable. Yeardley received an appointment as governor, and a royal command was issued that judgments, decrees, and important acts should be determined by the governor with the majority of the council, and all done in the name of the king. The proclamation of May 13, 1625, declared that the government of Virginia should be administered through two councils, one resident in England, and the other in the province, and that both should depend immediately on the king. This system continued as long as the commission of 1624 was in existence, and was renewed in June, 1631, by the appointment of a commission of which the lord chamberlain, the Earl of
BEGINNINGS OF BOYAL GOVEBNMENT IN VIRGINIA 79
Dorset, was the first member. Associated with him was CHAP, a distinguished array of officials, merchants, and former ^ members of the company, in rank much like those who made up the commission of 1624.^ It recommended the reestablish- ment of the company and the issue of a new charter. This should provide for a president and council who as the appoint- ees of the king should administer from England the govern- ment of the