Commentaries on the Constitution of the United States (1833)
by Joseph L. Story
§ 61. About the period when the Plymouth colonists completed their voyage, James the First, with a view to promote more effectually the interests of the second or northern company, granted1 to the Duke of Lenox and others of the company a new charter, by which its territories were extended in breadth from the 40th to the 48th degree of north latitude; and in length by all the breadth aforesaid throughout the main land from sea to sea, excluding however all possession of any other Christian prince, and all lands within the bounds of the southern colony.2 To the territory thus bounded he affixed the name of New England, and to the corporation itself so created, the name of “The Council established at Plymouth in the county of Devon, for the planting, ruling, ordering, and governing of New England in America.”3 The charter contains the names of the persons, who were to constitute the first council, with power to fill vacancies, and keep up a perpetual succession of counselors to the number of forty. The power to purchase, hold, and sell lands, and other usual powers of corporations are then conferred on them, and special authority to make laws and ordinances, to regulate the admission and trade of all persons with the plantation; to dispose of their lands; to appoint and remove governors and other officers of the plantation; to establish all manner of orders, laws and directions, instructions, forms and ceremonies of government and magistracy, so that the same be not contrary to the laws and statutes of England; to correct, punish, pardon, govern, and rule all inhabitants of the colony by such laws and ordinances, and in defect thereof, in cases of necessity, according to the good discretions of their governors and officers respectively, as well in cases capital and criminal as civil, both marine and others, so always that the same ordinances and proceedings be, as near as conveniently may be, agreeable to the laws, statutes, government, and policy of England; and finally to regulate trade and traffic to and from the colony, prohibiting the same to all persons not licensed by the corporation.4 The charter further contains some extraordinary powers in cases of rebellion, mutiny, misconduct, illicit trade, and hostile invasions, which it is not necessary to particularize. The charter also declares, that all the territory shall beholden of the crown, as of the royal manor of East Greenwich, in Kent county, in free and common soccage, and not in capite, nor by knight service;5 and that all subjects, inhabitants of the plantation, and their children and posterity born within the limits thereof, shall have and enjoy all liberties and franchises and immunities of free denizens and natural subjects within any other of the dominions of the crown, to all intents and purposes, as if they had been abiding and born within the kingdom of England, or any other dominions of the crown.6
§ 62. Some of the powers granted by this charter were alarming to many persons, and especially those, which granted a monopoly of trade.7 The efforts to settle a colony within the territory were again renewed and again were unsuccessful.8 The spirit of religion, however, soon effected, what the spirit of commerce had failed to accomplish. The Puritans, persecuted at home, and groaning under the weight of spiritual bondage, cast a longing eye towards America, as an ultimate retreat for themselves and their children. They were encouraged by the information, that the colonists at Plymouth were allowed to worship their Creator according to the dictates of their consciences, without molestation. They opened a negotiation, through the instrumentality of a Ml White, a distinguished nonconforming minister, with the council established at Plymouth; and in March, 1627, procured from them a grant to Sir Henry Rosewell and others of all that part of New England lying three miles south of Charles river and three miles north of Merrimack river, and extending from the Atlantic to the South Sea.9
§ 63. Other persons were soon induced to unite with them, if a charter could be procured from the crown, which should secure to the adventurers usual powers of government. Application was made for this purpose to King Charles, who, accordingly, in March 1628, granted to the grantees and their associates the most ample powers of government. The charter confirmed to them the territory already granted by the council established at Plymouth, to beholden of the crown, as of the royal manor of East Greenwich, “in free and common soccage, and not in capite, nor by knight’s service,” yielding to the crown one fifth part of all ore of gold and silver, etc. with the exception, however, of any part of the territory actually possessed or inhabited by any other Christian prince or state, or of any part of it within the bounds of the southern colony [of Virginia] granted by King James. It also created the associates a body politic by the name of ” The Governor and Company of the Massachusetts Bay in New England,” with the usual powers of corporations. It provided, that the government should he administered by a governor, a deputy governor, and eighteen assistants, from time to time elected out of the freemen of the company, which officers should have the care of the general business and affairs of the lands and plantations, and the government of the people there; and it appointed the first governor, deputy governor, and assistants by name. It further provided, that a court or quorum for the transaction of business should consist of the governor, or the deputy governor, and seven or more assistants, which should assemble as often as once a month for that purpose, and also, that four great general assemblies of the company should be held in every year. In these great and general assemblies (which were composed of the governor, deputy, assistants, and freemen present,) freemen were to be admitted free of the company, officers were to be elected, and laws and ordinances for the good and welfare of the colony made; “so as such laws and ordinances be not contrary or repugnant to the laws and statutes of this our realm of England.” At one of these great and general assemblies held in Easter Term, the governor, deputy, and assistants, and other officers were to be annually chosen by the company present.
The company were further authorized to transport any subjects or strangers willing to become subjects of the crown to the colony, and to carry on trade to and from it, without custom or subsidy for seven years, and were to be free of all taxation of imports or exports to and from the English dominion for the space of twenty one years, with the exception of a five per cent duty. The charter further provided, that all subjects of the crown, who should become inhabitants, and their children born there, or on the seas going or returning, should enjoy all liberties and immunities of free and natural subjects, as if they and every of them were born within the realm of England. Full legislative authority was also given, subject to the restriction of not being contrary to the laws of England, as also for the imposition of fines and mulcts “according to the course of other corporations in England.”10 Many other provisions were added, similar in substance to those found in the antecedent colonial charters of the crown.
§ 64. Such were the original limits of the colony of Massachusetts Bay, and such were the powers and privileges conferred on it. It is observable, that the whole structure of the charter presupposes the residence of the company in England, and. the transaction of all its business there. The experience of the past had not sufficiently instructed the adventurers, that settlements in America could not be well governed by corporations resident abroad;11 or if any of them had arrived at such a conclusion, there were many reasons for presuming, that the crown would be jealous of granting powers of so large a nature, which were to he exercised at such a distance, as would render any control or responsibility over them wholly visionary. They were content therefore to get what they could, hoping, that the future might furnish more ample opportunities for success; that their usurpations of authority would not be closely watched; or that there might be a silent indulgence, until the policy of the crown might feel it a duty to yield, what it was now useless to contend for, as a dictate of wisdom and justice.12 The charter did not include any clause providing for the free exercise of religion or the rights of conscience, (as has been often erroneously supposed;) and the monarch insisted upon an administration of the oath of supremacy to every person, who should inhabit in the colony; thus exhibiting a fixed determination to adhere to the severe maxims of conformity so characteristic of his reign.13 The first emigrants, however, paid no attention to this circumstance; and the very first church planted by them was independent in all its forms, and repudiated every connection with Episcopacy, or a liturgy.14
§ 65. But a bolder step was soon afterwards taken by the company itself. It was ascertained, that little success would attend the plantation, so long as its affairs were under the control of a distant government, knowing little of its wants and insensible to its difficulties. 15 Many persons, indeed, possessed of fortune and character, warmed with religious zeal, or suffering under religious intolerance, were ready to embark in the enterprise, if the corporation should be removed, so that the powers of government might be exercised by the actual settlers.16 The company had already become alarmed at the extent of their own expenditures, and there were but faint hopes of any speedy reimbursement. They entertained some doubts of the legality of the course of transferring the charter. But at length it was determined in August, 1629, “by the general consent of the company, that the government and patent should be settled in New England.”17 This resolution infused new life into the association; and the next election of officers was made from among those proprietors, who had signified an intention to remove to America. The government and charter were accordingly removed; and henceforth the whole management of all the affairs of the colony was confided to persons and magistrates resident within its own bosom. The fate of the colony was thus decided; and it grew with a rapidity and strength, that soon gave it a great ascendancy among the New England settlements, and awakened the jealousy, distrust, and vigilance of the parent country.
§ 66. It has been justly remarked, that this transaction stands alone in the history of English colonization.18 The power of the corporation to make the transfer has been seriously doubted, and even denied.19 But the boldness of the step is not more striking, than the silent acquiescence of the king in permitting it to take place. The proceedings of the royal authority a few years after sufficiently prove, that the royal acquiescence was not intended as any admission of light. The subsequent struggles between the crown and the colony, down to the overthrow of the charter, under the famous quo warranto proceedings in 1684, manifest a disposition on the part of the colonists to yield nothing, which could be retained; and on the part of the crown to force them into absolute subjection.
§ 67. The government of the colony immediately after the removal of the charter was changed in many important features; but its fundamental grants of territory, powers, and privileges were eagerly maintained in their original validity.20 It is true, as Dr. Robertson has observed,21 that as soon as the Massachusetts emigrants had landed on these shores, they considered themselves for many purposes as a voluntary association, possessing the natural rights of men to adopt that mode of government, which was most agreeable to themselves, and to enact such laws, as were conducive to their own welfare. They did not, indeed, surrender up their charter, or cease to recognize its obligatory force.22 But they extended their acts far beyond its expression of powers; and while they boldly claimed protection from it against the royal demands and prerogatives, they nevertheless did not feel, that it furnished any limit upon the freest exercise of legislative, executive, or judicial functions. They did not view it, as creating an English corporation under the narrow construction of the common law; but as affording the means of founding a broad political government, subject to the crown of England, but yet enjoying many exclusive privileges.23
§ 68. The General Court in their address to Parliament in 1646, in answer to the remonstrance of certain malcontents, used the following language:24 “For our government itself, it is framed according to our charter, and the fundamental and common laws of England, and carried on according to the same (taking the words of eternal truth and righteousness along with them, as that rule, by which all kingdoms and jurisdictions must render account of every act and administration in the last day) with as bare allowance for the disproportion between such an ancient, populous, wealthy kingdom, and so poor an infant, thin colony, as common reason can afford.” And they then proceeded to show the truth of their statement, by drawing a parallel, setting down in one column the fundamental and common laws and customs of England, beginning with Magna Charta, and in a corresponding column their own fundamental laws and customs. Among other parallels, after stating, that the supreme authority in England is in the high court of Parliament, they stated: “The highest authority here is in the general court both by our charter and by our own positive laws.”
§ 69. For three or four years after the removal of the charter, the governor and assistants were chosen and all the business of the government was transacted by the freemen assembled at large in a general court. But the members having increased, so as to make a general assembly inconvenient, an alteration took place, and in 1634, the towns sent representatives to the general court. They drew up a general declaration, that the general court alone had power to make and establish laws, and to elect officers, to raise monies and taxes, and to sell lands; and that therefore every town might choose persons as representatives, not exceeding two, who should have the full power and voices of all the freemen, except in the choice of officers and magistrates, where in every freeman was to give his own vote.25 The system, thus proposed, was immediately established by common consent,26 although it is nowhere provided for in the charter. and thus was formed the second house of representatives (the first being in Virginia) in any of the colonies.27 At first, the whole of the magistrates (or assistants) and the representatives sat together, and acted as one body, in enacting all laws and orders. But at legth in 1644 they separated into two distinct and independent bodies, each of which possessed a negative upon the acts of the other.28 This course of proceeding continued until the final dissolution of the charter.
§ 70. It may be well to state in this connection, that the council established at Plymouth in a very short period after the grant of the Massachusetts charter (in 1635) finally surrendered their own patent back to the crown. They had made other grants of territory, which we shall hereafter have occasion to notice, which had greatly diminished the value, as well as importance of their charter. But the immediate cause of the surrender was the odious extent of the monopolies granted to them, which roused the attention of Parliament, and of the nation at large, and compelled them to resign, what they could scarcely maintain against the strong current of public opinion. The surrender, so far from working any evil, rather infused new life into the colonies, which sprung from it, by freeing them from all restraint and supervision by a superior power, to which they might perhaps have been held accountable.29 Immediately after this surrender legal proceedings were instituted against the proprietors of the Massachusetts charter. Those who appeared were deprived of their franchises. But fortunately the measure was not carried into complete execution against the absent proprietors acting under the charter in America.30
§ 71. After the fall of the first colonial charter in 1684,31 Massachusetts remained for some years in a very disturbed state under the arbitrary power of the crown. At length a new charter was in 1691 granted to the colony by William and Mary; and it henceforth became known as a province, and continued to act under this last charter until after the Revolution. The charter comprehended within its territorial limits all the old colony of the Massachusetts Bay, the colony of New Plymouth, the Province of Maine, the territory called Acadia, or Nova Scotia, and all the lands lying between Nova Scotia and Maine; and incorporated the whole into one Province by the name of the Province of the Massachusetts Bay in New England, to be holden as of the royal manor of East Greenwich, in the county of Kent. It confirmed all prior grants made of lands to all persons, corporations, colleges, towns, villages, and schools. It reserved to the crown the appointment of the Governor, and Lieut. Governor, and Secretary of the province, and all the officers of the Court of Admiralty. It provided for the appointment annually of twenty-eight Counselors, who were to be chosen by the General Court, and nominated the first board. The Governor and Counsellors were to hold a council for the ordering and directing of the affairs of the Province. The Governor was invested with the right of nominating and with the advice of the council of appointing all military officers, and all sheriffs, provosts, marshals, and justices of the peace, and other officers of courts of justice. He had also the power of calling the General Court, and of adjourning, proroguing, and dissolving it. He had also a negative upon all laws passed by the General Court. The General Court was to assemble annually on the last Wednesday of May, and was to consist of the Governor and Council for the time being, and of such representatives being freeholders as should be annually elected by the freeholders in each town, who possessed a freehold of forty shillings annual value, or other estate to the value of forty pounds. Each town was entitled to two representatives; but the General Court was from time to time to decide on the number, which each town should send. The General Court was invested with full authority to erect courts, to levy taxes, and make all wholesome laws and ordinances, “so as the same be not repugnant or contrary to the laws of England;” and to settle annually all civil officers, whose appointment was not otherwise provided for all laws, however, were to be sent to England for approbation or disallowance; and if disallowed, and so signified under the sign manual and signet, within three years, the same thenceforth to cease and become void; otherwise to continue in force according to the terms of their original enactment. The General Court was also invested with authority to grant any lands in the colonies of Massachusetts, New Plymouth, and Province of Maine, with certain exceptions. The Governor and Council were invested with full jurisdiction as to the probate of wills and granting administrations. The Governor was also made commander in chief of the militia, with the usual martial powers; but was not to exercise martial law without the advice of the Council. In case of his death, removal, or absence, his authority was to devolve on the Lieut. Governor, or, if his office was vacant, then on the Council. With a view also to advance the growth of the Province by encouraging new settlements, it was expressly provided, that there should be “a liberty of conscience allowed in the worship of God to all Christians, except Papists;” and that all subjects inhabiting in the Province and their children born there, or on the seas going or returning, should have all the liberties and immunities of free and natural subjects, as if they were born within the realm of England. And in all cases an appeal was allowed from the judgments of any courts of the Province to the King in the Privy Council in England, where the matter in difference exceeded three hundred pounds sterling. And finally there was a reservation of the whole admiralty jurisdiction to the crown; and of a right to all subjects to fish on the coasts.32 Considering the spirit of the times, it must be acknowledged, that, on the whole, this charter contains a liberal grant of authority to the Province; and a reasonable reservation of the royal prerogative. It was hailed with sincere satisfaction by the colony after the dangers, which had for so long a time menaced its liberties and its peace.33
§ 72. In reviewing the laws passed by the Legislature of Massachusetts during its colonial state, the first and most important consideration is the early care, with which the public rights of the inhabitants were declared and established. No man’s life, person, honor, or good name was to be affected; no man was to be deprived of his wife or children, or estate, unless by virtue or equity of some express law of the General Court, “or in case of a defect of a law in any particular case, by the word of God; and in capital cases, or in cases of dismembering or banishment according, to that word, to be judged of by the General Court.”34 No persons but church members were allowed to become freemen; and all persons of twenty-one years of age were allowed to dispose of their estate by will or any proper conveyance.35 All conveyances were to be by deed acknowledged and recorded in the public records.36 All lands and hereditaments were declared free from all fines and forfeitures. Courts of law were established, and local processes provided for.37 The trial by jury in civil and criminal cases as secured.38 Wager at law was not allowed but according to law, and according to the precept in Exodus [22:8]. Difficult cases of law were finally determinable in the Court of Assistants or in the General Court, by appeal or petition. In criminal cases where the law prescribed no penalty, the judges had power to inflict penalties “according to the rule of God’s word.”39 Treason, murder, poisoning, arson, witchcraft, sodomy, idolatry, blasphemy, manstealing, adultery, false witness, conspiracy and rebellion, cursing, smiting of parents by children, being a stubborn or rebellious son, burglary, and rape (in particular circumstances) were offenses punishable with death.40 For the severity of some of these punishments the General Court expressly justified themselves by the language of the Scriptures. But theft was not punished with death, because, as they said, ” we read otherwise in the Scriptures;”41 and many other crimes of a heinous nature were suffered to pass with a moderate punishment.42 Hutchinson has well observed, that “in punishing offenses they professed to be governed by the judicial laws of Moses, but no further than those laws were of a moral nature.”43 Marriages were celebrated exclusively by magistrates during the first charter; though afterwards there was a concurrent power given to the clergy.44 Divorces a mensa et thoro seem not to have been in use during the period of the first charter; but for the same causes, for which such a divorce might be granted by the spiritual courts, a divorce a vinculo was granted. Female adultery was a sufficient cause; but male adultery not.45 In tenderness to the marriage state, a man, who struck his wife, or a woman her husband, was liable to a fine.46
§ 73. In the beginning the county courts had jurisdiction of the testamentary matters; and real estate was at first treated as mere bona in the civil law. When a positive rule was made, all the estate was (apparently with some reference to the Mosaic Law) made subject to distribution; the widow had such part of the estate, as the court held just and equal; and the rest was divided among the children or other heirs, the eldest son having a double portion,47 and the daughters, where there were no sons, inheriting as coparceners, unless the court otherwise should determine.48 If the party died insolvent, his estate was distributed among all his creditors, there not being any preference of any debts by judgment or specialty.49
The law of inheritance was thus, as we see, altered from that of England from the beginning; and yet, strangely enough, the General Court, in their answer in 1646, considered their canon of descent as parallel to the English law, and expounded it by the same terms, ” the eldest son is preferred before the younger in the ancestor’s inheritance,”50 when in reality he had only a double portion, and the estate was partible among all the children. Their lands being, by the charter held, as of the manor of East Greenwich, in free and common soccage, they attributed to it the gavelkind quality of not being forfeited for felony or treason; and the convict might therefore, even after sentence, dispose of it by will.51 Estates tail were recognized, and in such cases the heir took per formam doni, according to the common law, and not all the children as one heir.52
§ 74. In respect to ecclesiastical concerns they made ample provision for their own church, (meaning the Congregational Church,) exclusive of all others. In their parallel in 1646, they quote the provision of Magna Charta, that ” the church shall enjoy all her liberties,” and dropping all suggestion of the real differences of their own church establishment from that of England, they quote their own provision, that “all persons orthodox in judgment, and not scandalous in life, may gather into a church state according to the rules of the gospel,” as of similar import.53 They gave to their own churches, when organized, full power and authority to inflict ecclesiastical censures, and even to expel members. But they reserved to the civil authority the further power to punish offenses, and ” the liberty to see the peace, ordinances, and rules of Christ observed.”54 Every church had liberty to elect its own officers, and ” no injunction was to be put upon any church, church officer, or member in point of doctrine, worship, or discipline, whether for substance or circumstance, besides the institution of the Lord.”55 But the general court, with the assistance of the clergy, were in the habit of judging of all such matters with supreme authority, and of condemning errors with no sparing hand. They had not the slightest scruple of punishing heresies with fines and banishment, and even, in obstinate cases, with death.56 Ministers were maintained, and public worship provided for by taxes assessed upon the inhabitants of each parochial district; and an attendance upon public worship was required of all persons under penalties, as a solemn duty.57 So effectual were the colonial laws in respect to conformity, and so powerful the influence of the magistrates and the clergy, that Hutchinson informs us, that there was not “any Episcopal church in any part of the colony until the charter was vacated.”58
§ 75. But the most striking as well as the most important part of their legislation is in respect to education. As early as 1647, the General Court, “to the end,” as the preamble of the act declares,59 “that learning may not be buried in the graves of our forefathers in church and commonwealth,” provided, under a penalty, that every township of fifty householders “shall appoint a public school for the instruction of children in writing and reading, and that every town of one hundred householders “shall set up a grammar school, the master thereof being able to instruct youth so far as may be fitted for the university.” This law has, in substance, continued down to the present times; and it has contributed more than any other circumstance to give that peculiar character to the inhabitants and institutions of Massachusetts, for which she, in common with the other New England states, indulges an honest, and not unreasonable pride.
§ 76. After the grant of the provincial charter, in 1691, the legislation of the colony took a wider scope, and became more liberal, as well as more exact. At the very first session an act passed, declaring the general rights and liberties of the people, and embracing the principal provisions of Magna Charta on this subject. Among other things, it was declared, that no tax could be levied but by the General Court; that the trial by jury should be secured to all the inhabitants; and that all lands shall be free from escheats and forfeitures, except in cases of high treason.60 A habeas corpus act was also passed at the same session; but it seems to have been disallowed by the crown.61 Chalmers asserts, that there is no circumstance in the history of colonial jurisprudence better established than the fact, that the habeas corpus act was not extended to the plantations until the reign of Queen Anne.62
§ 77. It does not seem necessary to go into any minute examination of the subsequent provincial legislation. In its general character it did not materially vary from that antecedently adopted, except so far as the charter required, or a progressive spirit of improvement invited a change. Lands were made liable to the payment of debts; the right of choosing their ministers was, after some struggles, secured in effect to the concurrent vote of the church and congregation in each parish; and the spirit of religious intolerance was in some measure checked, if not entirely subdued. Among the earliest acts of the provincial legislature, which were approved, were an act for the prevention of frauds and perjuries, conformable to that of Charles the Second; an act for the observance of the Lord’s day; an act for solemnizing marriages by a minister or a justice of the peace; an act for the support of ministers and schoolmasters; an act for regulating towns and counties; and an act for the settlement and distribution of the estates of persons dying intestate.63 These and many other acts of general utility have continued substantially in force down to our day. Under the act for the distribution of estates the half blood were permitted to inherit equally with the whole blood.64 Entails were preserved and passed according to the course of descents of the common law; but the general policy of the state silently reduced the actual creation of such estates to comparatively narrow limits.