of the step is not more striking than the silent acquiescence of the King | in permitting it to take place." 1

If, however, we suppose that some of his councillors, when the charter was examined, saw that this might be done, the wonder ceases.2

Upon petition of Sir Christopher Gardiner, Sir Ferdinando Gorges, and Captain John Mason, growing in part, doubtless, out of Gardiner's grievances, and in part, probably, out of the conflict of title in the others, but representing "great distraction and much disorder" in New England, the matter was referred to the Privy Council, and examined by a committee, who heard the complainants, and divers of the principal adventurers. Whereupon, without determining certain contested matters of fact, resting to be proved by parties that must be called from the Colony, the Council, Jan. 19, 1632, "not laying the fault or fancies (if any be), of some particular men, upon the general government or principal adventurers," 3 thought fit to declare "that the appearances were so fair, and hopes so great, that the country would prove both beneficial to this kingdom, and profitable to the particulars, as that the adventurers had cause to go on cheerfully with their undertakings; and rest assured that if things were carried as pretended when the patents were granted, and accordingly as by the patent is appointed, his Majesty would not only maintain the liberties and privileges heretofore granted, but supply any thing farther that might tend to the good government, prosperity, and comfort of his people there, of that place." 4. This shows, conclusively, not only that no objections were then taken by the Privy Council to the transfer of the charter and government, but that none were taken to the general exercise of the powers of a colonial government, in the manner in which the grantees were exercising them.

Winthrop, in his History of New England, referring to the first intelligence of this proceeding, says, "The principal matter

1 1 Story's Com., § 65.

2 These matters are not material to the determination of the question whether the transfer was lawfully made. But the inference that it was originally contemplated seems so strong, that I have deemed it expedient to call attention to the facts.

3 Hutch. Coll. Papers, p. 53.

4 Hutch. Coll. Papers, p. 54; Chalm. Annals, vol. i. p. 155; Neal's Hist., p. 154.

1

they had against us, was the letters of some indiscreet persons among us, who had written against the church government in England." But in a subsequent paragraph, having then, it is to be presumed, received a copy, he speaks of the petition, as “accusing us to intend rebellion, to have cast off our allegiance, and to be wholly separate from the church and laws of England; that our ministers and people did continually rail against the State, and church, and bishops there," &c. Sir Richard Saltonstall, Mr. Humfrey, and Mr. Cradock were called before a committee of the Council, and a hearing was had. Winthrop says fur

ther, that

"The king, when the matter was reported to him by Sir Thomas Jermyn, one of the Council, who spoke much in commendation of the Governor, both to the lords, and afterwards to his Majesty, said that he would have them severely punished, who did abuse his governor and the plantation; that the defendants were dismissed with a favorable order for their encouragement, being assured by some of the Council, that his Majesty did not intend to impose the ceremonies of the Church of England upon us, for that it was considered, that it was the freedom from such things that made people come over to us.” 2

There were subsequent complaints from two classes of persons, those who had adverse territorial claims, and those who had experienced the discipline of the Colony. Mason was particularly active, insomuch that Winthrop appears to have been resigned to the providence of God, which, in 1635, “in mercy, taking him away," terminated his efforts to overthrow the government.3

In February, 1633-34, on the understanding of the transportation of great numbers to New England, among them "divers persons known to be ill affected, discontented not only with civil, but ecclesiastical government here, whereby such confusion and distraction is already grown there, especially in point of religion, as, beside the ruin of the said plantation, cannot but highly tend to the scandal both of Church and State here," there was an order of the King in Council to stay divers ships then in the Thames, ready to set sail, with an order that the masters and freighters should attend the Council, and a 3 Ib., p. 187.

1 Winthrop's Hist., vol. i. p. 100. 2 Ib., p. 103.

further order, "that Mr. Cradock, a chief adventurer in that plantation, now present before the board, should cause the letters patent for the plantation to be brought before this board."1

The ships were permitted to sail, on representations respecting the commercial interests which would be affected by their detention; and it would seem from what followed, that Cradock answered, that the charter was in the hands of Winthrop.

Laud became Archbishop of Canterbury in 1633; and his influence may perhaps be traced in this action of the Privy Council. Winthrop attributes it to "the archbishops and others of the Council;" and supposes that the intention was "to call in our patent." 2

Shortly afterwards, on the 28th of April, 1634, a commission for regulating plantations, was issued to the Archbishop of Canterbury, the Lord Keeper, and others, most, if not all, of them members of the Privy Council, giving them, among other things, power of protection and government over the colonies planted and to be planted, "power to make laws, ordinances, and constitutions, concerning either the State public of the said colonies, or utility of private persons, and their lands, goods," &c.; "and for relief and support of the clergy;" "and for consigning of convenient maintenance unto them by tithes," &c.; power to inflict punishment on offenders by imprisonment and other restraints, or by loss of life, or members; power to hear and determine all complaints, whether against the whole colonies, or any governor, of officer. And then comes a clause, the intent of which may readily be discovered from what followed.

"And we do, furthermore, give unto you, or any five or more of you, letters patents, and other writings whatsoever, of us or of our royal predecessors granted, for or concerning the planting of any colonies, in any countries, provinces, islands, or territories whatsoever, beyond the seas; and if, upon view thereof, the same shall appear to you, or any five or more of you, to have been surreptitiously and unduly obtained, or that any privileges or liberties therein granted, be hurtful to us, our Crown or

1 Hutch. Hist., vol. i. p. 33. From the order in which these proceedings are stated in Hubbard and Hutchinson, it would appear, that the King's expression of satisfaction was at the close of this hearing in 1633; but the dates in Winthrop's History show that to have been the year previous. Hubbard's dates in regard to these matters are not trustworthy.

2 Winthrop, vol. i. p. 135.

prerogative royal, or to any foreign princes, to cause the same, according to the laws and customs of our realm of England, to be revoked; and to do all other things which shall be necessary, for the wholesome government and protection of the said colonies and our people therein abiding.”

It appears from a recital in a subsequent order, made in 1638, that the Commissioners, in 1634 or 1635, gave an order "to Mr. Cradock, a member of that plantation, to cause the grant or letters patent of that plantation (alleged by him to be there remaining in the hands of Mr. Winthrop) to be sent over hither.”

In pursuance of the project for a general governor for the whole of New England, Gorges was directed to confer with the Council at Plymouth, to resolve whether they would resign their patent; and in April, 1635, the Duke of Lenox and others of that company, supposed to be acting in Gorges' interest, presented to the Lords of the Council 2 a petition, proposing to surrender; but praying, among other things, that the patent for the plantation of the Massachusetts Bay might be revoked.

Under the direction of the Commissioners, Sir John Banks, the Attorney-General, brought a quo warranto to enforce a forfeiture, in 1635. The process seems to have been founded upon an assumption, that the company had no rights whatever. There were fourteen allegations of usurpation; denying the defendants' claim of title to land, their claims to be a corporation, and to have the sole government of the country, &c.; and alleging that they made laws and statutes against the laws of England. There was no allegation that they had unlawfully established the government within the colony; but among the usurpations set forth was,

66

to keep a constant council in England of men of their own company and choosing, and to name, choose, and swear certain persons to be of that council; and to keep one council, ever resident in New England, chosen out of themselves, and to name, choose, and swear whom they please to be of that council."

Also, to have several common seals.3 There was no service in the Colony; but service was made upon several of the grantees

1 Hutch. Hist. (App.) vol. i. p. 502.

2 The Commissioners for Foreign Plantations are often so called, and there is danger of confusion, unless care is taken to distinguish their acts from those of the Privy Council.

3 Hutch. Coll. Papers, p. 101.

4 Hutch. Hist., vol. i. p. 86.

who were in England, each of whom, except Cradock, pleaded severally that he never usurped any of said liberties, and disclaimed. Against them, there was judgment that they should not for the future intermeddle with any of said franchises, but should be for ever excluded from the use of the same. Cradock appeared, and then made default; upon which there was judgment that he should be convicted of the usurpation charged, and that the liberties, privileges, and franchises should be taken and seized into the King's hand. The process was pending about two years, and there was judgment of outlawry against the rest of the patentees.1 But this judgment availed nothing. Jones and Winnington, attorney and solicitor general, in 1678, concurred in an opinion, "that neither the quo warranto was so brought, nor the judgment thereupon so given, as could cause a dissolution of the charter.” 2 The particular reasons were not stated. But we may well suppose the reason to have been, that there was no service on the corporation, nor on any of the members in Massachusetts, nor any legal outlawry as against them, and judgment of seizure was rendered against Cradock only. The reason for this probably was, that the process of the Court of King's Bench did not run into the Colony, because the Court had no jurisdiction there; and there could, of course, be no legal service there.

April 4th, 1638, the Lords Commissioners, taking into consideration that complaints grow more frequent "for want of a settled and orderly government in those parts;" and, calling to mind their former order to Mr. Cradock, about two or three years since, to cause the patent to be sent over; and, being informed by the attorney-general that judgment had been entered in the quo warranto, ordered that the clerk of the council, attendant upon them, should, in a letter from himself to Mr. Winthrop, convey their order; in which, in his Majesty's name, and according to his express will and pleasure," as they said, they strictly required and enjoined him, or any other who had the custody, that they fail not to transmit the patent by the return of the ship;

"it being resolved, that, in case of any further neglect or contempt by them showed therein, their Lordships will cause a strict course to be

1 Hutch. Coll. Papers, p. 103. 2 Chalmers's Annals, vol. i. pp. 405, 439.